Justice intersects with research on federal review committee

Any casual viewer of courtroom dramas is probably familiar with the idea that when a criminal defendant can't afford a lawyer, the court appoints one.

But how are those lawyers chosen? How are they paid? And how well does the system work? A new committee will consider those issues for the federal court level, with Jon Gould, program director for the Law and Social Sciences program in the National Science Foundation's (NSF) Social, Behavioral and Economic Sciences (SBE) Directorate, serving as its reporter.

The concept of court-appointed representation for the poor was enshrined in the landmark 1963 case of Gideon v. Wainwright, in which the Supreme Court held that the Sixth Amendment gives the indigent the right to counsel. The following year, President Lyndon B. Johnson signed into law the Criminal Justice Act, a law meant to create a framework for implementing the Gideon decision, including granting federal courts authority to compensate court-appointed lawyers.

In the five decades since the act went into effect, it has been subject to revisions and updates, and the courts have developed several mechanisms for implementing it. In April, the Administrative Office of the United States announced the creation of an ad hoc committee of judges and attorneys to answer a long list of questions about how well those programs are serving the original intent of the law.

NSF's Gould discussed his role on the new committee, and some of the issues on which it will focus.

Q. How did this appointment come about, and how do you feel about being selected?

A. I'm really honored to be chosen for this role. It was an appointment made by Supreme Court Chief Justice John Roberts, and I think one of the reasons I was selected is because of my background in the area. Another is because I come from a research institution, which means they can be sure that the reporter brings a research background and appreciation of the importance of research to the review.

Q. How often does a review of the Criminal Justice Act occur?

This is only the second time in the 50-year history of the Criminal Justice Act that the federal courts will have done a formal study on it. The first formal review was completed more than 15 years ago. The 50-year mark seems like an appropriate time to do another one.

Q. What purpose does a review serve?

A. It's intended to make sure that the right established in Gideon is actually being protected by the act's workings. The review will check to see that the attorneys being appointed are the appropriate ones and that there are sufficient resources going to the attorneys so the defendants are getting constitutionally adequate representation. It will also examine whether the appointment mechanisms being used are truly independent--that it's not, say, the friend of a judge being appointed but an independent, qualified attorney.

Q. What are some of the questions the review will consider?

A. Since the act was created, the mechanisms through which counsel is provided have changed. Originally, there were only panel attorneys--a group of lawyers in each federal district court who would volunteer to be appointed--and they were on a list from which a judge would select. Since the act was first created, it was amended to create public defender offices in certain federal courts that have large criminal dockets. There are also community defender organizations, essentially public defender organizations run by community groups. Those types of offices and organizations have been around for about 30 years, and this is a chance to go back and say, well, we have three different approaches. Is one better than the other? For example, should a public defender's office be the norm in federal district courts? Some federal districts have been experimenting with limits on the amount of money provided to defendants. Is that fair? Is that appropriate? There are all kinds of questions to consider.

Q. So the reviewers are taking a crucial part of the justice system and seeing how it's working?

A. Right. Clearly it's working at some level. The question is, how does that level compare to constitutional standards and the ideals that were behind the act in the first place?

Q. You're the reporter on this review committee. What does that entail?

A. The reporter does two things. First, the reporter plays a little bit of a devil's advocate. I don't have a vote and I'm not supposed to affect the substantive decisions of the committee. But if I'm doing my job well, I'm approaching it like I would leading a graduate seminar--pushing, probing and trying to ensure that the members of the commission are fully considering all of the questions.

The other part of being the reporter is writing up faithfully what the committee concludes--if there's a majority and minority view making sure that both are represented in the report, or if there's simply one view ensuring that it's explained well.

Q. What does your NSF experience allow you to bring to the position?

A. I come at the project as a researcher whose own work considers many of the same questions. I am going to try to ensure that the committee members are aware of and take into account the best research on these questions. Certainly, they know these issues very well and they're good on policy, but it is not always evident to people what the research says on these practices.

One of the things that impresses me about the committee is that they're going to conduct their own research. There will be public hearings. They'll collect data from multiple sources and examine vouchers to see who's been paid. As a researcher, it's an approach I recognize and respect.