[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5449 Introduced in House (IH)]

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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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Independent and Effective Federal 
Defenders Act of 2016''.

SEC. 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:
``Sec. 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.''.

SEC. 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.

SEC. 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.
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