I 114th CONGRESS 2d Session H. R. 5449 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. Short title This Act may be cited as the Independent and Effective Federal Defenders Act of 2016 . 2. Revision of system to ensure adequate representation of Federal defendants Section 3006A of title 18, United States Code, is amended to read as follows: 3006A. Adequate representation of defendants (a) Federal Defender Commission (1) In general There is established, as an independent agency within the executive branch, the Federal Defender Commission (hereinafter in this section referred to as the Commission ). (2) Composition and appointment by President The Commission shall consist of 12 members, appointed by the President. (3) Director The President shall appoint a Director to serve on the Commission. The Director shall have all of the qualifications described in paragraph (5) and none of the disqualifications described in paragraph (6). The term of the Director shall be 6 years, but a Director may serve after the expiration of that term until a successor takes office. (4) Considerations in appointment In appointing members of the Commission, the President shall ensure that— (A) each of the 12 members of the Commission has primary experience in criminal defense in a circuit in which no other member of the Commission has such experience at the time of the appointment; and (B) at least a majority of the members of the Commission are individuals who are former Federal defenders. (5) Qualifications of members To be a member of the Commission, an individual must— (A) be a member of the bar of the highest court of a State; and (B) have significant experience in the legal defense of criminal cases or demonstrated a commitment to indigent defense representation or juvenile defense representation. (6) Disqualifications of members An individual shall not serve on the Commission who is— (A) employed as a Federal defender; (B) employed as a prosecutor or law enforcement official; or (C) serving as an active judicial officer of the United States. (7) Term (A) Except as otherwise provided in this paragraph, the term of a member of the Commission shall be 6 years. (B) A member may serve after the expiration of that member’s term until a successor takes office. (C) Of the 12 members first appointed to the Commission, 6 shall be initially appointed for 2-year terms, so that the terms of members of the commission are staggered. (8) Duties of Commission The Commission shall— (A) consult with each United States district court on a plan operating throughout the district for furnishing representation to any person financially unable to obtain representation; (B) appoint, taking into consideration the recommendations of the relevant bar or bars of the State, law schools in the State, and other organizations and individuals, a Federal Public Defender, having the same qualifications for service as this subsection requires for a member of the Commission and not having any of the disqualifications described in this subsection, other than that described in paragraph (6)(A), for such service, for each district to carry out the plan for that district; and (C) develop for Federal Public Defender offices— (i) national guidelines on quality of representation; (ii) program evaluation systems; (iii) attorney and staff evaluation systems to ensure effective management and representation; (iv) training, publications, and seminars; (v) specialty resource centers; (vi) research and development pilot projects; (vii) statistical studies; and (viii) committees, projects, or working groups. (9) Plan may combine districts The plan may include a combination of districts if such a combined office would be cost effective, based on the number of appointments each year, and where the interests of justice of effective representation require the establishment of such an office. The Commission shall determine the need for a Federal Public Defender office and geographic boundaries it serves. However, the Commission shall ensure that each Federal judicial district has within it a Federal Public Defender office providing representation. (10) Staff The Commission may appoint additional employees as it deems appropriate, to assist the Commission in carrying out its duties. (11) Compensation of members and employees Members of the Commission and employees of the Commission shall be compensated at rates determined by the Commission, but not in excess of the rate of level V of the Executive Schedule specified in section 5316 of title 5. (12) Professional responsibility The Commission shall not— (A) interfere with any attorney providing representation under this section in carrying out such attorney’s professional responsibilities to such attorney’s client; or (B) abrogate as to attorneys in providing representation under this section the authority of a State or other jurisdiction to enforce standards of professional responsibility generally applicable to attorneys in such jurisdiction. (b) Requirements for plan Each plan for representation under this section shall include the following: (1) Representation provided in all cases Representation shall be provided for any financially eligible person who— (A) is charged with a criminal offense; (B) is a juvenile alleged to have committed an act of juvenile delinquency as defined in section 5031; (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; (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; (J) is entitled to the appointment of counsel under section 4109; (K) is involved in a proceeding in which a criminal adjudication may result; (L) is being considered for, or seeks to obtain, under subsection (c)(1) or (c)(2) of section 3582, a modification of a term of imprisonment; or (M) is involved in proceedings seeking clemency or a pardon. (2) Representation provided in some cases 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 seeks relief under section 2241, 2254, or 2255 of title 28. (3) Appointment of private attorneys Each District shall develop a panel of private attorneys. A private attorney shall provide representation under this section when the nature of the case or ethical considerations so require. Cases shall be randomly assigned to private panel attorneys on a rotating basis. The Federal Public Defender in the district shall not be involved in the selection of private panel attorneys for individual cases. The panel of private attorneys shall divide themselves into areas of criminal proceeding expertise. (4) Qualifications of private attorneys To be a private attorney on the panel, an individual must have significant experience in the legal defense of criminal cases. (5) Ongoing training and certification of private attorneys Each District shall develop and provide ongoing, mandatory training programs for private attorneys on the panel. All attorneys participating on a panel shall have their performance in representing defendants regularly peer reviewed by and certified by distinguished members of the local criminal defense community. (6) Use of private attorneys Each plan shall provide that private attorneys be appointed to represent defendants in a substantial proportion of cases. (7) Use of other attorneys Each plan may include, in addition to the provisions for private attorneys, for the use of attorneys furnished by a bar association or legal aid society. (c) Budget analyst Each District shall have a budget analyst. The budget analyst shall be hired by the Commission. The budget analyst shall be operationally independent of the Federal Public Defender and the judicial branch in such circuit. The budget analyst shall have significant experience in criminal defense practice. The budget analyst shall engage in timely, objective, and independent analysis of reimbursement for costs submitted by the private attorneys. The budget analyst may mediate any claims for reimbursement payments submitted by private attorneys. The budget analyst will oversee and approve the use of investigators and experts for cases. (d) Federal Public Defender (1) Duties and powers The Federal Public Defender in each district shall carry out the plan for representation in that district. In order to do so, the Federal Public Defender may appoint such staff, establish salaries for the staff, and make such contracts as are necessary to carry out the functions of the office. The salary structure in each office shall be commensurate with that provided for the lawyers and staff of the United States Attorney for the relevant district. (2) Term The term of a Federal Public Defender is 4 years, but a Federal Public Defender may serve after the expiration of that term until a successor takes office. The Federal Public Defender may be appointed for more than one term. (3) Removal The Commission may, with the concurrence of three quarters of the members serving at the time of the removal, remove a Federal Public Defender for cause. (4) Vacancy The Commission may fill a vacancy of the office of Federal Public Defender for the remainder of the term, in the same manner as the original appointment was made. (e) Alternative means of representation in a district (1) Generally The Commission may create a Community Defender Organization to carry out the plan for representation in the District. 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 from the Commission if its bylaws are set forth in the plan of the district or districts in which it will serve. (2) Annual report Each organization shall submit to the Commission an annual report setting forth its activities and financial position and the anticipated caseload and expenses for the next fiscal year. (3) Grants Upon application an organization may, to the extent approved by the Commission— (A) receive an initial grant for expenses necessary to establish the organization; and (B) receive periodic sustaining grants to provide representation and other expenses pursuant to this section. (f) Change of structure between that of Federal Public Defender and that of Community Defender Organization Either a Community Defender Organization or a Federal Public Defender may apply to the Commission to change its structure to that of the other. The Commission may allow that change if the Commission determines such a change would better serve the purposes of this section. (g) Duration and Substitution of Appointments A person for whom counsel is appointed shall be represented at every stage of the proceedings from before being interviewed by pretrial services or a probation officer 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 under this section, 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. (h) Nonapplicability to local courts of the District of Columbia This section does not apply to representation in the Superior Court of the District of Columbia or the District of Columbia Court of Appeals. (i) Definitions In this section the following definitions apply: (1) Circuit The term circuit means one of the circuits for which there is a United States court of appeals. (2) District court 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. (3) Representation The term representation means representation by legal counsel and also includes investigative, expert, and other services necessary for adequate representation. (4) State The term State includes any State or other similar entity in which a district court is established. . 3. Continuation of organizations established before enactment A Federal Defender organization established before enactment of this Act shall continue in operation, and the Federal Public Defender then in office shall continue to serve the Federal Public Defender’s term in that capacity. A Community Defender Organization, committee, project, or working group established before enactment of this Act shall continue in operation. 4. General Accountability Office Study Not later than 4 years after the date of the enactment of this Act, the Comptroller General shall complete a study and report to Congress on the provision and cost of Federal Defense services.