I 

114TH CONGRESS 

2D SESSION H. R. 5449 

To amend title 18, United States Code, to create a commission to provide 

adequate representation to defendants in Federal criminal cases, and 

for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 10, 2016 

Mr. DEUTCH (for himself and Mr. KENNEDY) introduced the following bill; 

which was referred to the Committee on the Judiciary 

A BILL 

To amend title 18, United States Code, to create a commission to provide adequate representation to defendants 

in Federal criminal cases, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Independent and Ef5 fective Federal Defenders Act of 2016’’. 

6 SEC. 2. REVISION OF SYSTEM TO ENSURE ADEQUATE REP7 RESENTATION OF FEDERAL DEFENDANTS. 

8 Section 3006A of title 18, United States Code, is 

9 amended to read as follows: 


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1 ‘‘§ 3006A. Adequate representation of defendants 

2 ‘‘(a) FEDERAL DEFENDER COMMISSION.— 

3 ‘‘(1) IN GENERAL.—There is established, as an 

4 independent agency within the executive branch, the 

5 Federal Defender Commission (hereinafter in this 

6 section referred to as the ‘Commission’). 

7 ‘‘(2) COMPOSITION AND APPOINTMENT BY

8 PRESIDENT.—The Commission shall consist of 12 

9 members, appointed by the President. 

10 ‘‘(3) DIRECTOR.—The President shall appoint a 

11 Director to serve on the Commission. The Director 

12 shall have all of the qualifications described in para13 graph (5) and none of the disqualifications described 

14 in paragraph (6). The term of the Director shall be 

15 6 years, but a Director may serve after the expira16 tion of that term until a successor takes office. 

17 ‘‘(4) CONSIDERATIONS IN APPOINTMENT.—In 

18 appointing members of the Commission, the Presi19 dent shall ensure that— 

20 ‘‘(A) each of the 12 members of the Com21 mission has primary experience in criminal de22 fense in a circuit in which no other member of 

23 the Commission has such experience at the time 

24 of the appointment; and 


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1 ‘‘(B) at least a majority of the members of 

2 the Commission are individuals who are former 

3 Federal defenders. 

4 ‘‘(5) QUALIFICATIONS OF MEMBERS.—To be a 

5 member of the Commission, an individual must— 

6 ‘‘(A) be a member of the bar of the highest 

7 court of a State; and 

8 ‘‘(B) have significant experience in the 

9 legal defense of criminal cases or demonstrated 

10 a commitment to indigent defense representa11 tion or juvenile defense representation. 

12 ‘‘(6) DISQUALIFICATIONS OF MEMBERS.—An 

13 individual shall not serve on the Commission who 

14 is— 

15 ‘‘(A) employed as a Federal defender; 

16 ‘‘(B) employed as a prosecutor or law en17 forcement official; or 

18 ‘‘(C) serving as an active judicial officer of 

19 the United States. 

20 ‘‘(7) TERM.— 

21 ‘‘(A) Except as otherwise provided in this 

22 paragraph, the term of a member of the Com23 mission shall be 6 years. 


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1 ‘‘(B) A member may serve after the expi2 ration of that member’s term until a successor 

3 takes office. 

4 ‘‘(C) Of the 12 members first appointed to 

5 the Commission, 6 shall be initially appointed 

6 for 2-year terms, so that the terms of members 

7 of the commission are staggered. 

8 ‘‘(8) DUTIES OF COMMISSION.—The Commis9 sion shall— 

10 ‘‘(A) consult with each United States dis11 trict court on a plan operating throughout the 

12 district for furnishing representation to any 

13 person financially unable to obtain representa14 tion; 

15 ‘‘(B) appoint, taking into consideration the 

16 recommendations of the relevant bar or bars of 

17 the State, law schools in the State, and other 

18 organizations and individuals, a Federal Public 

19 Defender, having the same qualifications for 

20 service as this subsection requires for a member 

21 of the Commission and not having any of the 

22 disqualifications described in this subsection, 

23 other than that described in paragraph (6)(A), 

24 for such service, for each district to carry out 

25 the plan for that district; and 


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1 ‘‘(C) develop for Federal Public Defender 

2 offices— 

3 ‘‘(i) national guidelines on quality of 

4 representation; 

5 ‘‘(ii) program evaluation systems; 

6 ‘‘(iii) attorney and staff evaluation 

7 systems to ensure effective management 

8 and representation; 

9 ‘‘(iv) training, publications, and semi10 nars; 

11 ‘‘(v) specialty resource centers; 

12 ‘‘(vi) research and development pilot 

13 projects; 

14 ‘‘(vii) statistical studies; and 

15 ‘‘(viii) committees, projects, or work16 ing groups. 

17 ‘‘(9) PLAN MAY COMBINE DISTRICTS.—The 

18 plan may include a combination of districts if such 

19 a combined office would be cost effective, based on 

20 the number of appointments each year, and where 

21 the interests of justice of effective representation re22 quire the establishment of such an office. The Com23 mission shall determine the need for a Federal Pub24 lic Defender office and geographic boundaries it 

25 serves. However, the Commission shall ensure that 


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1 each Federal judicial district has within it a Federal 

2 Public Defender office providing representation. 

3 ‘‘(10) STAFF.—The Commission may appoint 

4 additional employees as it deems appropriate, to as5 sist the Commission in carrying out its duties. 

6 ‘‘(11) COMPENSATION OF MEMBERS AND EM7 PLOYEES.—Members of the Commission and em8 ployees of the Commission shall be compensated at 

9 rates determined by the Commission, but not in ex10 cess of the rate of level V of the Executive Schedule 

11 specified in section 5316 of title 5. 

12 ‘‘(12) PROFESSIONAL RESPONSIBILITY.—The 

13 Commission shall not— 

14 ‘‘(A) interfere with any attorney providing 

15 representation under this section in carrying 

16 out such attorney’s professional responsibilities 

17 to such attorney’s client; or 

18 ‘‘(B) abrogate as to attorneys in providing 

19 representation under this section the authority 

20 of a State or other jurisdiction to enforce stand21 ards of professional responsibility generally ap22 plicable to attorneys in such jurisdiction. 

23 ‘‘(b) REQUIREMENTS FOR PLAN.—Each plan for rep24 resentation under this section shall include the following: 


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1 ‘‘(1) REPRESENTATION PROVIDED IN ALL

2 CASES.—Representation shall be provided for any fi3 nancially eligible person who— 

4 ‘‘(A) is charged with a criminal offense; 

5 ‘‘(B) is a juvenile alleged to have com6 mitted an act of juvenile delinquency as defined 

7 in section 5031; 

8 ‘‘(C) is charged with a violation of proba9 tion; 

10 ‘‘(D) is under arrest, when such represen11 tation is required by law; 

12 ‘‘(E) is charged with a violation of super13 vised release or faces modification, reduction, or 

14 enlargement of a condition, or extension or rev15 ocation of a term of supervised release; 

16 ‘‘(F) is subject to a mental condition hear17 ing under chapter 313; 

18 ‘‘(G) is in custody as a material witness; 

19 ‘‘(H) is entitled to appointment of counsel 

20 under the sixth amendment to the Constitution; 

21 ‘‘(I) faces loss of liberty in a case, and 

22 Federal law requires the appointment of coun23 sel; 

24 ‘‘(J) is entitled to the appointment of 

25 counsel under section 4109; 


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1 ‘‘(K) is involved in a proceeding in which 

2 a criminal adjudication may result; 

3 ‘‘(L) is being considered for, or seeks to 

4 obtain, under subsection (c)(1) or (c)(2) of sec5 tion 3582, a modification of a term of imprison6 ment; or 

7 ‘‘(M) is involved in proceedings seeking 

8 clemency or a pardon. 

9 ‘‘(2) REPRESENTATION PROVIDED IN SOME

10 CASES.—Whenever the United States magistrate 

11 judge or the court determines that the interests of 

12 justice so require, representation may be provided 

13 for any financially eligible person who seeks relief 

14 under section 2241, 2254, or 2255 of title 28. 

15 ‘‘(3) APPOINTMENT OF PRIVATE ATTORNEYS.— 

16 Each District shall develop a panel of private attor17 neys. A private attorney shall provide representation 

18 under this section when the nature of the case or 

19 ethical considerations so require. Cases shall be ran20 domly assigned to private panel attorneys on a rotat21 ing basis. The Federal Public Defender in the dis22 trict shall not be involved in the selection of private 

23 panel attorneys for individual cases. The panel of 

24 private attorneys shall divide themselves into areas 

25 of criminal proceeding expertise. 


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1 ‘‘(4) QUALIFICATIONS OF PRIVATE ATTOR2 NEYS.—To be a private attorney on the panel, an in3 dividual must have significant experience in the legal 

4 defense of criminal cases. 

5 ‘‘(5) ONGOING TRAINING AND CERTIFICATION

6 OF PRIVATE ATTORNEYS.—Each District shall de7 velop and provide ongoing, mandatory training pro8 grams for private attorneys on the panel. All attor9 neys participating on a panel shall have their per10 formance in representing defendants regularly peer 

11 reviewed by and certified by distinguished members 

12 of the local criminal defense community. 

13 ‘‘(6) USE OF PRIVATE ATTORNEYS.—Each plan 

14 shall provide that private attorneys be appointed to 

15 represent defendants in a substantial proportion of 

16 cases. 

17 ‘‘(7) USE OF OTHER ATTORNEYS.—Each plan 

18 may include, in addition to the provisions for private 

19 attorneys, for the use of attorneys furnished by a 

20 bar association or legal aid society. 

21 ‘‘(c) BUDGET ANALYST.—Each District shall have a 

22 budget analyst. The budget analyst shall be hired by the 

23 Commission. The budget analyst shall be operationally 

24 independent of the Federal Public Defender and the judi25 cial branch in such circuit. The budget analyst shall have 


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1 significant experience in criminal defense practice. The 

2 budget analyst shall engage in timely, objective, and inde3 pendent analysis of reimbursement for costs submitted by 

4 the private attorneys. The budget analyst may mediate 

5 any claims for reimbursement payments submitted by pri6 vate attorneys. The budget analyst will oversee and ap7 prove the use of investigators and experts for cases. 

8 ‘‘(d) FEDERAL PUBLIC DEFENDER.— 

9 ‘‘(1) DUTIES AND POWERS.—The Federal Pub10 lic Defender in each district shall carry out the plan 

11 for representation in that district. In order to do so, 

12 the Federal Public Defender may appoint such staff, 

13 establish salaries for the staff, and make such con14 tracts as are necessary to carry out the functions of 

15 the office. The salary structure in each office shall 

16 be commensurate with that provided for the lawyers 

17 and staff of the United States Attorney for the rel18 evant district. 

19 ‘‘(2) TERM.—The term of a Federal Public De20 fender is 4 years, but a Federal Public Defender 

21 may serve after the expiration of that term until a 

22 successor takes office. The Federal Public Defender 

23 may be appointed for more than one term. 

24 ‘‘(3) REMOVAL.—The Commission may, with 

25 the concurrence of three quarters of the members 


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1 serving at the time of the removal, remove a Federal 

2 Public Defender for cause. 

3 ‘‘(4) VACANCY.—The Commission may fill a va4 cancy of the office of Federal Public Defender for 

5 the remainder of the term, in the same manner as 

6 the original appointment was made. 

7 ‘‘(e) ALTERNATIVE MEANS OF REPRESENTATION IN

8 A DISTRICT.— 

9 ‘‘(1) GENERALLY.—The Commission may cre10 ate a Community Defender Organization to carry 

11 out the plan for representation in the District. A 

12 Community Defender Organization shall be a non13 profit defense counsel service established and admin14 istered by any group authorized by the plan to pro15 vide representation. The organization shall be eligi16 ble to furnish attorneys and receive payments from 

17 the Commission if its bylaws are set forth in the 

18 plan of the district or districts in which it will serve. 

19 ‘‘(2) ANNUAL REPORT.—Each organization 

20 shall submit to the Commission an annual report 

21 setting forth its activities and financial position and 

22 the anticipated caseload and expenses for the next 

23 fiscal year. 


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1 ‘‘(3) GRANTS.—Upon application an organiza2 tion may, to the extent approved by the Commis3 sion— 

4 ‘‘(A) receive an initial grant for expenses 

5 necessary to establish the organization; and 

6 ‘‘(B) receive periodic sustaining grants to 

7 provide representation and other expenses pur8 suant to this section. 

9 ‘‘(f) CHANGE OF STRUCTURE BETWEEN THAT OF

10 FEDERAL PUBLIC DEFENDER AND THAT OF COMMUNITY

11 DEFENDER ORGANIZATION.—Either a Community De12 fender Organization or a Federal Public Defender may 

13 apply to the Commission to change its structure to that 

14 of the other. The Commission may allow that change if 

15 the Commission determines such a change would better 

16 serve the purposes of this section. 

17 ‘‘(g) DURATION AND SUBSTITUTION OF APPOINT18 MENTS.—A person for whom counsel is appointed shall be 

19 represented at every stage of the proceedings from before 

20 being interviewed by pretrial services or a probation officer 

21 through appeal, including ancillary matters appropriate to 

22 the proceedings. If at any time after the appointment of 

23 counsel the United States magistrate judge or the court 

24 finds that the person is financially able to obtain counsel 

25 or to make partial payment for the representation, it may 


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1 terminate the appointment of counsel or authorize pay2 ment as provided in subsection (f), as the interests of jus3 tice may dictate. If at any stage of the proceedings, includ4 ing an appeal, the United States magistrate judge or the 

5 court finds that the person is financially unable to pay 

6 counsel whom he had retained, it may appoint counsel 

7 under this section, as the interests of justice may dictate. 

8 The United States magistrate judge or the court may, in 

9 the interests of justice, substitute one appointed counsel 

10 for another at any stage of the proceedings. 

11 ‘‘(h) NONAPPLICABILITY TO LOCAL COURTS OF THE

12 DISTRICT OF COLUMBIA.—This section does not apply to 

13 representation in the Superior Court of the District of Co14 lumbia or the District of Columbia Court of Appeals. 

15 ‘‘(i) DEFINITIONS.—In this section the following defi16 nitions apply: 

17 ‘‘(1) CIRCUIT.—The term ‘circuit’ means one of 

18 the circuits for which there is a United States court 

19 of appeals. 

20 ‘‘(2) DISTRICT COURT.—The term ‘district 

21 court’ means each district court of the United States 

22 created by chapter 5 of title 28, the District Court 

23 of the Virgin Islands, the District Court for the 

24 Northern Mariana Islands, and the District Court of 

25 Guam. 


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1 ‘‘(3) REPRESENTATION.—The term ‘representa2 tion’ means representation by legal counsel and also 

3 includes investigative, expert, and other services nec4 essary for adequate representation. 

5 ‘‘(4) STATE.—The term ‘State’ includes any 

6 State or other similar entity in which a district court 

7 is established.’’. 

8 SEC. 3. CONTINUATION OF ORGANIZATIONS ESTABLISHED 

9 BEFORE ENACTMENT. 

10 A Federal Defender organization established before 

11 enactment of this Act shall continue in operation, and the 

12 Federal Public Defender then in office shall continue to 

13 serve the Federal Public Defender’s term in that capacity. 

14 A Community Defender Organization, committee, project, 

15 or working group established before enactment of this Act 

16 shall continue in operation. 

17 SEC. 4. GENERAL ACCOUNTABILITY OFFICE STUDY. 

18 Not later than 4 years after the date of the enact19 ment of this Act, the Comptroller General shall complete 

20 a study and report to Congress on the provision and cost 

21 of Federal Defense services. 

Æ 


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