Reviewing Criminal Justice Act (CJA) vouchers

Some of you enjoyed an earlier post entitled The best gift I ever got from a convicted killer. There is a back story to that post. Although the appeal was successful, and Tommy had his sentence cut in half resulting in his immediate release, the state district judge was upset. He allowed payment for my brief printing costs but nothing more.

I go paid zip for the appeal. Nothing for the hours and hours I spent writing the brief that the Nebraska Supreme Court relied upon to immediately release my client. Nothing for the overnight travel to make the oral argument. Nothing for the oral argument.

To say that I was furious is an understatement. I didn’t care about the money. What I carried about was the not too subtle hint from the bench that overturning a sentence in a murder case would be “punished” if a lawyer had the temerity to try.

When I became a judge, I quickly realized that I would now be in the position of approving counsel’s request for fees under the CJA. In this post, I will explain how I approach the process. I hope to hear back from CJA lawyers about their experiences. I welcome comments from others too. This is a “behind the curtain” stuff, but it is critical to the functioning of the federal courts. We should bring this issue out of the dark.

We have a Criminal Justice Act Plan.* It was implemented to create the Federal Public Defender for the District of Nebraska and to create the CJA panel. If you are charged with a crime and do not retain your own counsel, you will be represented by an assistant federal public defender or a CJA panel attorney if you cannot afford counsel. The decision is up to the Magistrate Judge but it is based upon a nomination from the Federal Public Defender who manages the panel. The Federal Public Defender’s management of the panel is overseen by a committee. The committee consists of two judges and a lawyer from the panel.**

Roughly half the cases are “paneled,” meaning they go to members of the CJA panel. The other half go to the Federal Public Defender’s office. The reason for this division is two-fold. First, the Federal Public Defender doesn’t have the staff to take all the cases, and, second, the Federal Public Defender could not take all the cases anyway due to conflicts of interest.

Excluding capital cases, panel attorneys are paid $126 per hour plus their expenses. There is a maximum fee that may be charged unless I approve an “excess” voucher and the Chief Judge of the Eighth Circuit does so too. Here are the case compensation maximums at present: Felony (including pre-trial diversion of alleged felony)–$9,800; Misdemeanor (including pre-trial diversion of alleged misdemeanor)–$2,800; Post-conviction proceeding under 28 U.S.C. §§ 2241, 2254 or 2255–$9,800; Other representation required or authorized by the CJA (including, but not limited to probation, supervised release hearing, material witness, grand jury witness)–$2,100. Counsel are entitled to expenses over and above these maximums such as when they hire their own interpreters.

It would wrong to assume that panel attorneys make a lot of money handling these cases. This is true for a number of reasons. For example, let’s say a lawyer takes a felony case in our district. The median time to disposition for criminal cases in our district is 7.5 months. So, most of the time panel attorneys are looking at a significant commitment of time for each federal case accepted, and the lawyer is not likely to be paid until a year after the appointment is made. Moreover, most lawyers can only expect a few cases each year and many get only one and some none. At $126 per hour, it is not a gravy train.***

Now, let me tell you how I approach the process of reviewing CJA vouchers. (I exclude capital cases because there are so few of them, and they present special issues.) Here is my approach:

  • I receive a packet from the Federal Public Defender’s employee who reviews the voucher for mathematical accuracy and for compliance with various “technical” requirements. The voucher will include detailed backup information in the form of a spreadsheet showing time slips for each activity the lawyer undertook. It is broken down to one-tenth of an hour and contains a short description of the activity performed. There is also detail, including supporting receipts, for expenses claimed. If the lawyer seeks approval over the case compensation maximum, the lawyer is obligated to provide a letter explaining why the excess should be approved.
  • The legal test for approval of an “excess” voucher, which comes from the CJA, is this:”Payment in excess of any maximum amount . . . may be made for extended or complex representation whenever the court in which the representation was rendered, . . . 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.” (Emphasis added by Kopf).
  • I review the packet myself. I don’t delegate that function to anyone else.
  • I assume that if a lawyer said he or she spent an hour doing this or that the lawyer’s time claim is accurate. I almost never challenge a lawyer’s claim of time.  Remember, a lawyer could forfeit his or her license or be prosecuted federally for not telling the truth on the voucher.
  • If the voucher does not exceed the maximum, I approve the voucher after a superficial review. I almost never reduce a voucher that is below the maximum.
  • For excess vouchers, my review is more detailed. Initially, I review the letter from the lawyer and compare it to the voucher. I then review a docket sheet printed from CM/ECF by my assistant to remind me of the scope and breadth of the case. After that, I decide whether I will approve the voucher in whole or in part. I seldom “cut” excess vouchers. But, if I do, I won’t cut the voucher until counsel and I confer on the reasons for my reduction. I write a letter to counsel explaining my views and giving counsel an opportunity to object and explain in further detail. Most of the time, I don’t change my mind, but on several occasions counsel has convinced me that I am wrong. If so, I approve the voucher. If I decide to approve an excess voucher, I write a detailed letter to the Chief Judge of the Eighth Circuit (now Chief Judge Riley). Each such letter contains my personal views and is specific to that particular case. By the way, imagine the burden on the Chief Judge of the Circuit having to review “excess” vouchers from each district.
  • One of the toughest issues I confront is when I think counsel spent too much time, but I can see why counsel could reasonably come to a different conclusion about the need for the expenditure of that time. In those circumstances, I will not substitute my judgment for the judgment of counsel.
  • I then send the packet off to Chief Judge Riley. If I hear nothing back, that typically means that he too has agreed on approval. Sometimes, the Chief will reduce a voucher. If that occurs, the Federal Public Defender notifies me and I review the rationale of the Chief Judge for reducing the voucher.
  • If I have approved an “excess” voucher but the Chief Judge of the Circuit disagrees, I consider that to be a “reversal.” In other words, I take that decision very seriously and I do my best to incorporate the Chief’s point of view in subsequent voucher reviews. That said, the Chief’s review has to be case specific, so I do not treat a disapproval by him as necessarily having application to other cases.

So, that is how I deal with CJA vouchers. What say you?

 RGK

*I had the privilege of drafting our first Plan with the help of Dean Ross at the Defender Services branch of the Administrative Office of the United States Courts. Dean is the son of Judge Ross. In addition to being a great lawyer, with experience as an Assistant Federal Public Defender, I remember Dean as a terrific track athlete at Nebraska where he lettered in 1977-1978.

**Each district has a CJA Panel Attorney District Representative selected from among the members of the CJA panel, with the approval of the chief judge. The panel representative leads their district CJA panel; attends the annual National Conference of CJA Panel Attorney District Representatives; serves as liaison between the CJA panel and the federal defender organization, the court and the AO’s Office of Defender Services; comments on proposed legislation relating to the CJA; works toward improving the quality of representation as well as the conditions under which panel attorneys provide representation. Our representative is Alan Stoler. Alan has experience as a state prosecutor followed by many years of experience as criminal defense lawyer handling the most difficult of state and federal cases. He does a terrific job representing the interests of CJA panel members.

***When the rate was $100 per hour, an economic analysis concluded that CJA panel counsel netted $36 per hour before taxes. See here.

 

 

15 responses

  1. Judge:
    New York State has an equivalent program which pays attorneys to represent indigents in both the family and criminal courts, as well as on appeals. I represented panel clients in family court for many years–at the grand rate of $40 per hour!–while a sole practitioner. Judges would routinely sign vouchers, sometimes without reading them, because the lawyers frequently appeared before them and could generally be trusted when seeking payment for their services. Were there abuses? Probably. But it seems that the thoroughness you bring to reviewing vouchers is the most that could be asked for under these circumstances.
    Robert

  2. Robert,

    After you received the $40 per hour, I assume you invested it and are now living off easy street.

    It is a tribute to you that you worked for nothing to prop up our justice system. I don’t believe the public has any understanding what good lawyers do in this area. Thank you for your service!

    All the best.

    RGK

  3. Dear Judge Kopf:

    The Eastern District of Kentucky relies solely on CJA panel attorneys; there is no federal public defender or community defender organization in the district. This has been the case for 30 plus years or so, long before I began practicing in the court.

    For whatever reason and I would like to think it is a good one, I’ve never had a CJA voucher questioned or reduced for work done before the district court; I would think the number of vouchers I’ve submitted is now upwards or around a hundred.

    It is no good or easy money, as you say. In early 2010, I tried a seven week racketeering, election fraud and public corruption case and carried a very hefty sum of unpaid time for over a year after the end of the trial, as sentencing was delayed due to a host of good reasons. The district judge in that case could not have been more helpful in seeing that me and the other two CJA panel attorneys were paid as soon as reasonably possible.

    Appeals, however, have been a different story. In early 2003, a Sixth Circuit panel affirmed 2-1 the denial of a motion to suppress in a case where I was appointed counsel. The circuit then granted the petition for en banc review, ordered the filing of a supplemental brief, held oral argument in July 2003 and then issued its 8-5 decision affirming the following summer. The case is United States v. Carter, 378 F3d 584. Of course, the filing of a petition for certiorari was both necessary and appropriate and was done. Payment was eventually approved for $500 more than the then statutory “maximum,” which meant, as I recall, an hourly rate of less than $30 per hour for work some of which was done nearly 3 years earlier. I agree, of course, that cost control is necessary and appropriate; nowhere in the world is there or should there be an unlimited budget. But that was neither fair nor reasonable. The circuit has in other instances also been similarly tight-fisted.

    Thank you for sharing your thoughts on this issue.

  4. We are treated well here in Lincoln, in my opinion. Our Fed PD office does a very good job informing us CJA lawyers the how and why of filling out the voucher. The going private rate of a good defense lawyer on a drug case starts at $10,000. I kind of figure you get about 1/2 of what you would want if the case was private. For those that think the $126 hour is too high, i argue if a lawyer can successfully show a Judge a client should spend just a year less in prison that equates to around $30,000 saved (i believe it is around that much to house an person for a year in prison).

    I could write a lengthy bitch about state court rates. You get rates that don’t even pay the bills, you end up with a group of substandard lawyers who spend way too much time on cases, slowing them down, reaching for hours. I’m happy to take the cases, but when you lose money, at some point one thinks, i might as well go fishing instead of getting yipped at for $50 hour (rate in Lancaster County Court) its surprisingly less frustrating.

  5. I think it is a good program, so long as the U.S. Attorney is also limited to the same maximums and any of their excess costs are subject to review.

    I know that my thoughts may be naive and idealistic, but why does the defense have to justify these expenditures when the full weight of government falls on his client, with no expenditure limitation.

  6. Ex Cop-LawStudent,

    Your question is a powerful one from a purely rehetorical point of view. But, I think there is a honest answer that minimizes the true force of your point.

    Every prosecutor is subject to the budget constraints of the Executive. Thus, every prosecutor is both limited by the policy choices of his superiors (Is the case worth prosecuting?) and every prosecutor is, I suspect, subject to internal budgetary limitations set by DOJ when it comes to the cost of specific cases. In short, the DOJ can only spend what Congress provides.

    The funding for the defense has been given over to the Judicial Branch. This was done to protect indigent criminal defense funding, not to harm it. Because there are finit resources accorded to the Judicial Branch for this purpose, some budgetary limmiations are necessary so that all cases can be funded. In short, the Judicial Branch, just like DOJ, can only spend what Congress provides.

    I believe that both the prosecutor and appointed defense counsel are subject to budgetary limitations. One actor’s budget is beyond our ability to know precisely–DOJ, while the other–CJA, is more public.

    Of course, whether the limitations are equal is something we don’t know. But, I am not so sure that the limmitations should be equal. That may be a policy debate worth having, but before we do so, we must (1) have far more data about what it should cost to prosecute and defend federal criminal cases; and (2) understand what our priorities are in the federal criminal justice arena as between prosecution and defense. Right now, we don’t have either one.

    All the best.

    RGK

  7. Robert,

    Three reactions. It sounds like you are satisfied with the way your vouchers are reviewed at the district court level. I am glad. It sounds like you are not thrilled with the separate review process in the Sixth Circuit for appellate fees (which are in addition to the fees paid in the district court). I hear that a lot in other places. Third, having shared your frustration with getting paid next to nothing on appeal of case that was very unusual, but in the state courts, I find your story about being $30 per hour utterly depressing.

    I hope you continue to do CJA work. As you know better than I do, your work is very important to the mission of the federal courts and the interests of justice more broadly.

    All the best.

    RGK

  8. Korey,

    Thanks for writing. I know you love to fish. So do I. My kid is a Phd in the biology of fishes. It sounds like you would put a value for fishing at $50 per hour. I think that is way too cheap. But that’s as far as I am willing to go on the state side issue. I have caused enough trouble already for one week.

    All the best.

    RGK

  9. Sir,

    My point is this–the U.S. Attorney’s requested $2,007,717,000 in funding for FY14. The Public Defender’s budget was for $1,079,000,000, or about half of the prosecutor’s budget. When they shut the government down last fall, a number of head public defenders laid themselves off rather than their staff, while the U.S. Attorney’s and their staff were exempt. I understand the thought process behind this, and prior to attending law school I supported this approach. There is an inherent governmental bias towards prosecution, and always has been.

    The indigent have a constitutional right to competent representation. You cannot have that if the defense is hampered by lack of funding. When you tell someone that they can only spend $9,800 on a case, that’s the amount of legal service you’ll get, on average, because no one likes to work for no pay. Last year, when the hourly rate dropped from $125 to $110, one Federal CJA saw half of the lawyers remove their name from the list. Pay matters, and you also get what you pay for.

    Would it not be better to fully fund an adequate defense, and then when the money runs out, simply let the government know that they can either fund future defense costs or face the charges being dismissed? If the U.S. Attorney really wants to prosecute the individual, let them pony up the funds.

    I realize that this is overly simplified, but I also believe that it is the place of jurists to protect those unable to pay for their own attorney.

  10. ExCop-LawStudent,

    First, you cannot compare the whole DOJ budget to the Defender Services Budget for panel attorneys. You aren’t comparing the same thing. DOJ has a far broader mission. That’s true even if you only look at the budget for the US Attorneys. Remember, they are running a whole civil division.

    Second, the value to the public of providing indigent federal defense services is a moving target. I suspect we (our nation) will always struggle with that issue. Right now, the panel lawyers in the federal system are underpaid in my view, but I am too close to the issue to be perfectly impartial.

    Third, this post is directed at process not substance so much. So, I am not interested now in spending too much time discussing the far broader question of whether panel attorneys are in general bad too much or too little. I am more interested in revealing and discussing the manner in which the judiciary handles whatever meager payments are being made; that is, voucher review process.

    All the best.

    RGK

  11. Sir,

    My apologies. I was not aware of your focus on the review and exception process. And you’re right, I did not consider the civil division part of the U.S. Attorney’s Office, although I did omit the other parts of the DOJ budget and limited it just to the U.S. Attorney line item.

    I agree that the lawyers are probably being underpaid, but that’s probably partially due to my lack of experience and the fact that I’m in an urban area with higher rates (the criminal defense average was $210/hr here, and $196/hr for the state, as of 2011).

    I really don’t have anything to offer on the process, so with your permission I’ll excuse myself from the rest of the discussion. Again, my apologies for going outside of the focus area. I should have picked up on that from your post.

  12. This was a very helpful post by Judge Kopf. I have had frustrating experiences with CJA vouchers in the past. It does seem as though the processing has improved. However, it is reassuring to read Judge Kopf’s detailed and thoughtful description of how he considers CJA vouchers.

  13. No apology whatever is necessary. Your concern is a natural outgrowth of the post. I just think that debate is one for another day.

    All the best.

    RGK

  14. A pair of quick questions…you said the maximum standard CJA payment for handling a regular felony case is $9800…is that even if it goes to trial?

    That seems awfully cheap for a trial. At $126 and hour $9800 works out to just shy of 78 hours. After doing the math, I was struck by the thought that if I was facing a federal criminal case and potentially looking at years or decades locked up, and assuming I had enough of a defense to go to trial, I would expect my lawyer to put in a whole lot more than 78 hours of time working on it.

    I’ll stipulate to my own ignorance: I’ve covered a lots of trials, but only one federal criminal case, so maybe this is just the norm and I’m way outta line with my expectations.

    P.S. glad you decided to keep blogging.

  15. Dear Aidian,

    Yes, the case compensation maximum of $9800 includes trials and works out to 78 hours.

    Remember, though, that the great majority of cases do not end in trial. In 2010, the Executive Office for United States Attorneys reported at PDF p. 21 that: “A total of 3,056, or three percent, of the terminated defendants went to trial.” So, the number of cases reaching trial is small.

    Nonetheless, your implicit point is correct. The case compensation maximum is relatively low.

    All the best.

    RGK

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