(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 for
furnishing representation for any person financially unable to obtain adequate
representation in accordance with this section. Representation under each plan
shall include counsel and investigative, expert, and other services necessary for
adequate representation. Each plan shall provide the following:
(1) Representation shall be provided for any financially eligible person who--
(A) is charged with a felony or with a Class A misdemeanor;
(B) is a juvenile alleged to have committed an act of juvenile
delinquency as defined in section 5031 of this title;
(C) is charged with a violation of probation;
(D) is under arrest, when such representation is required by law;
(E) is charged with a violation of supervised release or faces
modification, reduction, or enlargement of a condition, or extension
or revocation of a term of supervised release;
(F) is subject to a mental condition hearing under chapter 313 of this
title;
(G) is in custody as a material witness;
(H) is entitled to appointment of counsel under the sixth amendment to
the Constitution;
(I) faces loss of liberty in a case, and Federal law requires the
appointment of counsel; or
(J) is entitled to the appointment of counsel under Section 4109 of this
title.
(2) Whenever the United States magistrate judge or the court determines that
the interests of justice so require, representation may be provided for any
financially eligible person who--
(A) is charged with a Class B or C misdemeanor, or an infraction for
which a sentence to confinement is authorized; or
(B) is seeking relief under section 2241, 2254, or 2255 of title 28.
(3) Private attorneys shall be appointed in a substantial proportion of the cases.
Each plan may include, in addition to the provisions for private attorneys,
either of the following or both:
(A) Attorneys furnished by a bar association or a legal aid agency.
(B) Attorneys furnished by a defender organization established in
accordance with the provisions of subsection (g).
Prior to approving the plan for a district, the judicial council of the circuit
shall supplement the plan with provisions for representation on appeal. The
district court may modify the 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
Administrative Office of the United States Courts of any modification
of its plan.
(b) Appointment of counsel.--Counsel furnishing representation under the plan shall
be selected from a panel of attorneys designated or approved by the court,
or from a bar association, legal aid agency, or defender organization furnishing
representation pursuant to the plan. In every case in which a person entitled to
representation under a plan approved under subsection (a) appears without counsel,
the United States magistrate judge or the court shall advise the person 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 person
waives representation by counsel, the United States magistrate judge or the court,
if satisfied after appropriate inquiry that the person is financially unable to obtain
counsel, shall appoint counsel to represent him. Such appointment may be made
retroactive to include any representation furnished pursuant to the plan prior to
appointment. The United States magistrate judge or the court shall appoint separate
counsel for persons having interests that cannot properly be represented by the
same counsel, or when other good cause is shown.
(c) Duration and substitution of appointments.--A person for whom counsel is
appointed shall be represented at every stage of the proceedings from his initial
appearance before the United States magistrate judge or the court through appeal,
including ancillary matters appropriate to the proceedings. If at any time after the
appointment of counsel the United States magistrate judge or the court finds that
the person is financially able to obtain counsel or to make partial payment for the
representation, it may terminate the appointment of counsel or authorize payment
as provided in subsection (f), as the interests of justice may dictate. If at any
stage of the proceedings, including an appeal, the United States magistrate judge
or the court finds that the person is financially unable to pay counsel whom he
had retained, it may appoint counsel as provided in subsection (b) and authorize
payment as provided in subsection (d), as the interests of justice may dictate. The
United States magistrate judge or the court may, in the interests of justice,
substitute one appointed counsel for another at any stage of the proceedings.
(d) Payment for representation.--
(1) Hourly rate.--Any attorney appointed pursuant to this section or a bar
association or legal aid agency or community defender organization which
has provided the appointed attorney shall, at the conclusion of the
representation or any segment thereof, be compensated at a rate not
exceeding $60 per hour for time expended in court or before a United States
magistrate judge and $40 per hour for time reasonably expended out of
court, unless the Judicial Conference determines that a higher rate of not
in excess of $75 per hour is justified for a circuit or for particular districts
within a circuit, for time expended in court or before a United States
magistrate judge and for time expended out of court. The Judicial
Conference shall develop guidelines for determining the maximum hourly
rates for each circuit in accordance with the preceding sentence, with
variations by district, where appropriate, taking into account such factors
as the minimum range of the prevailing hourly rates for qualified attorneys
in the district in which the representation is provided and the
recommendations of the judicial councils of the circuits. Not less than 3
years after the effective date of the Criminal Justice Act Revision of
1986, the Judicial Conference is authorized to raise the maximum hourly
rates specified in this paragraph up to the aggregate of the overall average
percentages of the adjustments in the rates of pay under the General
Schedule made pursuant to section 5305 of title 5 on or after such effective
date. After the rates are raised under the preceding sentence, such
maximum hourly rates may be raised at intervals of not less than 1 year
each, up to the aggregate of the overall average percentages of such
adjustments made since the last raise was made under this paragraph.
Attorneys may be reimbursed for expenses reasonably incurred, including
the costs of transcripts authorized by the United States magistrate judge
or the court, and the costs of defending actions alleging malpractice of
counsel in furnishing representational services under this section. No
reimbursement for expenses in defending against malpractice claims shall
be made if a judgment of malpractice is rendered against the counsel
furnishing representational services under this section. The United States
magistrate judge or the court shall make determinations relating to
reimbursement of expenses under this paragraph.
(2) Maximum amounts.--For representation of a defendant before the United
States magistrate judge or the district court, or both, the compensation to be
paid to an attorney or to a bar association or legal aid agency or community
defender organization shall not exceed $7,000 for each attorney in a case in
which one or more felonies are charged, and $2,000 for each attorney in a
case in which only misdemeanors are charged. For representation of a
defendant in an appellate court, the compensation to be paid to an attorney
or to a bar association or legal aid agency or community defender
organization shall not exceed $5,000 for each attorney in each court. For
representation of a petitioner in a non-capital habeas corpus proceeding, the
compensation for each attorney shall not exceed the amount applicable to
a felony in this paragraph for representation of a defendant before a judicial
officer of the district court. For representation of such a petitioner in an
appellate court, the compensation for each attorney shall not exceed the
amount applicable for representation of a defendant in an appellate court.
For representation of an offender before the United States Parole
Commission in a proceeding under section 4106A of this title, the
compensation shall not exceed $1,500 for each attorney in each proceeding;
for representation of an offender in an appeal from a determination of such
Commission under such section the compensation shall not exceed $5,000
for each attorney in each court. For any other representation required or
authorized by this section, the compensation shall not exceed $1,500 for
each attorney in each proceeding. The compensation maximum amounts provided in this subsection shall increase simultaneously by the same percentage, rounded to the nearest multiple of $100, as the aggregate percentage increases in the maximum hourly compensation rate paid pursuant to paragraph (1) for time expended since the case maximum amounts were last adjusted.
(3) Waiving maximum amounts.--Payment in excess of any maximum
amount provided in paragraph (2) of this subsection may be made for
extended or complex representation whenever the court in which the
representation was rendered, or the United States magistrate judge if the
representation was furnished exclusively before him, certifies that the
amount of the excess payment is necessary to provide fair compensation
and the payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.
(4) Disclosure of fees. —
(A)
In general. --Subject to subparagraphs (B) through (E), the amounts paid under this subsection for services in an y case shall be made available to the public by the court upon the court's approval of the payment.
(B) Pre-trial or trial in progress. -- If a trial is in pre-trial status or still in progress and after considering the defendant's interests as set forth in subparagraph (D), the court shall —
(i) redact any detailed information on the payment voucher provided by defense counsel to justify the expenses to the court; and
(ii) make public only the amounts approved for payment to defense counsel by dividing those amounts into the following categories:
(I) Arraignment and or plea.
(II) Bail and detention hearings.
(III) Motions.
(IV) Hearings.
(V) Interviews and conferences.
(VI) Obtaining and reviewing records.
(VII) Legal research and brief writing.
(VIII) Travel time.
(IX) Investigative work.
(X) Experts.
(XI) Trial and appeals.
(XII) Other.
(C) Trial completed. --
(i) In general. -- If a request for payment is not submitted until after the completion of the trial and subject to consideration of the defendant's interests as set forth in subparagraph (D), the court shall make available to the public an unredacted copy of the expense voucher.
(ii) Protection of the rights of the defendant. -- If the court determines that the defendant's interests as set forth in subparagraph (D) require a limited disclosure, the court shall disclose amounts as provided in subparagraph (B).
(D) Considerations. -- The interests referred to in subparagraphs (B) and (C) are —
(i) to protect any person's 5th amendment right against self-incrimination;
(ii) to protect the defendant's 6th amendment rights to effective assistance of counsel;
(iii) the defendant's attorney-client privilege;
(iv) the work product privilege of the defendant's counsel;
(v) the safety of any person; and
(vi) any other interest that justice may require, except that the amount of the fees shall not be considered a reason justifying any limited disclosure under section 3006A(d)(4) of title 18, United States Code.1
(E) Notice. -- The court shall provide reasonable notice of disclosure to the counsel of the defendant prior to the approval of the payments in order to allow the counsel to request redaction based on the considerations set forth in subparagraph (D). Upon completion of the trial, the court shall release unredacted copies of the vouchers provided by defense counsel to justify the expenses to the court. If there is an appeal, the court shall not release unredacted copies of the vouchers provided by defense counsel to justify the expenses to the court until such time as the appeals process is completed, unless the court determines that none of the defendant's interests set forth in subparagraph (D) will be compromised.
(F) Effective date. -- The amendment made by paragraph (4) shall become effective 60 days after enactment of this Act, will apply only to cases filed on or after the effective date, and shall be in effect for no longer than 24 months after the effective date.2
(5) Filing claims.--A separate claim for compensation and reimbursement
shall be made to the district court for representation before the United States
magistrate judge and the court, and to each appellate court before which the
attorney provided representation to the person involved. Each claim shall
be supported by a sworn written statement specifying the time expended,
services rendered, and expenses incurred while the case was pending before
the United States magistrate judge and the court, and the compensation and
reimbursement applied for or received in the same case from any other
source. The court shall fix the compensation and reimbursement to be paid
to the attorney or to the bar association or legal aid agency or community
defender organization which provided the appointed attorney. In cases
where representation is furnished exclusively before a United States
magistrate judge, the claim shall be submitted to him and he shall fix the
compensation and reimbursement to be paid. In cases where representation
is furnished other than before the United States magistrate judge, the district
court, or an appellate court, claims shall be submitted to the district court
which shall fix the compensation and reimbursement to be paid.
(6) New trials.--For purposes of compensation and other payments authorized
by this section, an order by a court granting a new trial shall be deemed to
initiate a new case.
(7) Proceedings before appellate courts.--If a person for whom counsel is
appointed under this section appeals to an appellate court or petitions for a
writ of certiorari, he may do so without prepayment of fees and costs or
security therefore and without filing the affidavit required by section
1915(a) of title 28.
(e) Services other than counsel.--
(1) Upon request.--Counsel for a person who is financially unable to obtain
investigative, expert, or other services necessary for adequate representation
may request them in an ex parte application. Upon finding, after
appropriate inquiry in an ex parte proceeding, that the services are necessary
and that the person is financially unable to obtain them, the court, or the
United States magistrate judge if the services are required in connection
with a matter over which he has jurisdiction, shall authorize counsel to
obtain the services.
(2) Without prior request.--
(A) Counsel appointed under this section may obtain, subject to later
review, investigative, expert, and other services without prior
authorization if necessary for adequate representation. Except as
provided in subparagraph (B) of this paragraph, the total cost of
services obtained without prior authorization may not exceed $500
and expenses reasonably incurred.
(B) The court, or the United States magistrate judge (if the services were
rendered in a case disposed of entirely before the United States
magistrate judge), may, in the interest of justice, and upon the
finding that timely procurement of necessary services could not
await prior authorization, approve payment for such services after
they have been obtained, even if the cost of such services exceeds
$500.
(3) Maximum amounts.--Compensation to be paid to a person for services
rendered by him to a person under this subsection, or to be paid to an
organization for services rendered by an employee thereof, shall not exceed
$1,600, exclusive of reimbursement for expenses reasonably incurred,
unless payment in excess of that limit is certified by the court, or by the
United States magistrate judge if the services were rendered in connection
with a case disposed of entirely before him, as necessary to provide fair
compensation for services of an unusual character or duration, and the
amount of the excess payment is approved by the chief judge of the circuit.
The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.
(4) Disclosure of fees.--The amounts paid under this subsection for services
in any case shall be made available to the public.
(f) Receipt of other payments.--Whenever the United States magistrate judge or the
court finds that funds are available for payment from or on behalf of a person
furnished representation, it may authorize or direct that such funds be paid to the
appointed attorney, to the bar association or legal aid agency or community
defender organization which provided the appointed attorney, to any person or
organization authorized pursuant to subsection (e) to render investigative, expert,
or other services, or to the court for deposit in the 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 or organization may
request or accept any payment or promise of payment for representing a defendant.
(g) Defender organization. --
(1) Qualifications. -- A district or a part of a district in which at least two
hundred persons annually require the appointment of counsel may
establish a defender organization as provided for either under
subparagraphs (A) or (B) of paragraph (2) of this subsection or both.
Two adjacent districts or parts of districts may aggregate the number of
persons required to be represented to establish eligibility for a defender
organization to serve both areas. In the event that adjacent districts or
parts of districts are located in different circuits, the plan for furnishing
representation shall be approved by the judicial council of each circuit.
(2) Types of defender organizations. --
(A) Federal Public Defender Organization. -- A Federal Public
Defender Organization shall consist of one or more full-time
salaried attorneys. An organization for a district or part of a
district or two adjacent districts or parts of districts shall be
supervised by a Federal Public Defender appointed by the court of
appeals of the circuit, without regard to the provisions of title 5
governing appointments in the competitive service, after
considering recommendations from the district court or courts to
be served. Nothing contained herein shall be deemed to authorize
more than one Federal Public Defender within a single judicial
district. The Federal Public Defender shall be appointed for a
term of four years, unless sooner removed by the court of appeals
of the circuit for incompetency, misconduct in office, or neglect
of duty. Upon the expiration of his term, a Federal Public
Defender may, by a majority vote of the judges of the court of
appeals, continue to perform the duties of his office until his
successor is appointed, or until one year after the expiration of
such Defender's term, whichever is earlier. The compensation of
the Federal Public Defender shall be fixed by the court of appeals
of the circuit at a rate not to exceed the compensation received by
the United States attorney for the district where representation is
furnished or, if two districts or parts of districts are involved, the
compensation of the higher paid United States attorney of the
districts. The Federal Public Defender may appoint, without
regard to the provisions of title 5 governing appointments in the
competitive service, full-time attorneys in such number as may be
approved by the court of appeals of the circuit and other personnel
in such number as may be approved by the Director of the
Administrative Office of the United States Courts.
Compensation paid to such attorneys and other personnel of the
organization shall be fixed by the Federal Public Defender at a
rate not to exceed that paid to attorneys and other personnel of
similar qualifications and experience of the Office of the United
States Attorney in the district where representation is furnished or,
if two districts or parts of districts are involved, the higher
compensation paid to persons of similar qualifications and
experience in the districts. Neither the Federal Public Defender
nor any attorney so appointed by him may engage in the private
practice of law. Each organization shall submit to the Director of
the Administrative Office of the United States Courts, at the time
and in the form prescribed by him, reports of its activities and
financial position and its proposed budget. The Director of the
Administrative Office shall submit, in accordance with section
605 of title 28, a budget for each organization for each fiscal year
and shall out of the appropriations therefore make payments to
and on behalf of each organization. Payments under this
subparagraph to an organization shall be in lieu of payments under
subsection (d) or (e).
(B) Community Defender Organization. -- A Community Defender
Organization shall be a nonprofit defense counsel service established and
administered by any group authorized by the plan to provide
representation. The organization shall be eligible to furnish attorneys and
receive payments under this section if its bylaws are set forth in the plan
of the district or districts in which it will serve. Each organization shall
submit to the Judicial Conference of the United States an annual report
setting forth its activities and financial position and the anticipated
caseload and expenses for the next fiscal year. Upon application an
organization may, to the extent approved by the Judicial Conference of
the United States:
(i) receive an initial grant for expenses necessary to establish the organization; and
(ii) in lieu of payments under subsection (d) or (e), receive periodic sustaining grants to provide representation and other expenses pursuant to this section.
(3) Malpractice and negligence suits. -- The Director of the Administrative
Office of the United States Courts shall, to the extent the Director considers
appropriate, provide representation for and hold harmless, or provide
liability insurance for, any person who is an officer or employee of a
Federal Public Defender Organization established under this subsection, or
a Community Defender Organization established under this subsection
which is receiving periodic sustaining grants, for money damages for injury, loss
of liberty, loss of property, or personal injury or death arising from malpractice or
negligence of any such officer or employee in furnishing representational services
under this section while acting within the scope of that person's office or
employment.
(h) Rules and reports. -- Each district court and court of appeals of a circuit shall
submit a report on the appointment of counsel within its jurisdiction to 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. The Judicial
Conference of the United States may, from time to time, issue rules and regulations
governing the operation of plans formulated under this section.
(i) Appropriations. -- 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, including funds for the
continuing education and training of persons providing representational services
under 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.
(j) Districts included. -- As used in this section, the term "district court" means each
district court of the United States created by chapter 5 of title 28, the District Court
of the Virgin Islands, the District Court for the Northern Mariana Islands, and the
District Court of Guam.
(k) Applicability in the District of Columbia. -- The provisions of
this section shall apply in the United States District Court for the District of Columbia and the
United States Court of Appeals for the District of Columbia Circuit. The provisions of this
section shall not apply to the Superior Court of the District of Columbia and the District of
Columbia Court of Appeals.
18 U.S.C. § 3005 (ACT OF JUNE 25, 1948, CHAPTER 645, 62 STAT. 814), AS
AMENDED BY PUBLIC LAW 103-322, APPROVED SEPTEMBER 13, 1994.
Counsel and witnesses in capital cases
Whoever is indicted for treason or other capital crime shall be allowed to make his full defense by
counsel; and the court before which the defendant is to be tried, or a judge thereof, shall promptly,
upon the defendant's request, assign 2 such counsel, of whom at least 1 shall be learned in the law
applicable to capital cases, and who shall have free access to the accused at all reasonable hours.
In assigning counsel under this section, the court shall consider the recommendation of the Federal
Public Defender organization, or, if no such organization exists in the district, of the Administrative
Office of the United States Courts. The defendant shall be allowed, in his defense to make any
proof that he can produce by lawful witnesses, and shall have the like process of the court to compel
his witnesses to appear at his trial, as is usually granted to compel witnesses to appear on behalf of
the prosecution.
SELECTED PROVISIONS OF THE USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005, PUBLIC LAW 109-177, APPROVED MARCH 9, 2006, CODIFIED IN TITLE 18, UNITED STATES CODE, SECTION 3599. 3
§ 3599 Counsel for financially unable defendants
(a)(1) Notwithstanding any other provision of law to the contrary, in every criminal action in which a defendant is charged with a crime which may be punishable by death, a defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services at any time either--
(A) before judgment; or
(B) after the entry of a judgment imposing a sentence of death but before the execution of that judgment; shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).
(2) In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f).
(b) If the appointment is made before judgment, at least one attorney so appointed must have been admitted to practice in the court in which the prosecution is to be tried for not less than five years, and must have had not less than three years experience in the actual trial of felony prosecutions in that court.
(c) If the appointment is made after judgment, at least one attorney so appointed must have been admitted to practice in the court of appeals for not less than five years, and must have had not less than three years experience in the handling of appeals in that court in felony cases.
(d) With respect to subsections (b) and (c), the court, for good cause, may appoint another attorney whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation.
(e) Unless replaced by similarly qualified counsel upon the attorney's own motion or upon motion of the defendant, each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.
(f) Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant's attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor under subsection (g). No ex parte proceeding, communication, or request may be considered pursuant to this section unless a proper showing is made concerning the need for confidentiality. Any such proceeding, communication, or request shall be transcribed and made a part of the record available for appellate review.
(g)(1) Compensation shall be paid to attorneys appointed under this subsection at a rate of not more than $125 per hour for in-court and out-of-court time. The Judicial Conference is authorized to raise the maximum for hourly payment specified in the paragraph up to the aggregate of the overall average percentages of the adjustments in the rates of pay for the General Schedule made pursuant to section 5305 of title 5 on or after such date. After the rates are raised under the preceding sentence, such hourly range may be raised at intervals of not less than one year, up to the aggregate of the overall average percentages of such adjustments made since the last raise under this paragraph.
(2) Fees and expenses paid for investigative, expert, and other reasonably necessary services authorized under subsection (f) shall not exceed $7,500 in any case, unless payment in excess of that limit is certified by the court, or by the United States magistrate judge, if the services were rendered in connection with the case disposed of entirely before such magistrate judge, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit. The chief judge of the circuit may delegate such approval authority to an active or senior circuit judge.
(3) The amounts paid under this paragraph for services in any case shall be disclosed to the public, after the disposition of the petition.
SELECTED PROVISIONS OF THE CIVIL ASSET FORFEITURE REFORM ACT OF 2000
(PUBLIC LAW 106-185, APPROVED APRIL 25, 2000), CODIFIED IN PART IN TITLE 18,
UNITED STATES CODE, SECTION 983.
Sec. 983. General rules for civil forfeiture proceedings
* * *
(b) REPRESENTATION. --
(1)(A) If a person with standing to
contest the forfeiture of property in a judicial civil forfeiture proceeding under a civil
forfeiture statute is financially unable to obtain representation by counsel, and the person
is represented by counsel appointed under section 3006A of this title
in connection with a related criminal case, the court may authorize
counsel to represent that person with respect to the claim.
(B) In determining whether to authorize counsel to
represent a person under subparagraph (A), the court shall take into account such
factors as --
(i) the person's standing to contest the forfeiture; and
(ii) whether the claim appears to be made in good faith.
* * *