August 20, 1964—the President signed into law the Criminal Justice Act (CJA), which for the first time assured professional legal counsel in federal courts by paying an hourly fee for court appointed lawyers. Six years later, Congress established a full-time federal defender service within the judicial branch.
Federal courts appointed defense lawyers long before, but until the Criminal Justice Act of 1964, those lawyers were not paid.
Together, the measures created the modern federal defenders system, and helped secure a right that Americans now take for granted: meaningful legal representation even for those who can’t afford it.
Many defenders and judges call the CJA a shining success. “It’s been called the gold standard of public defense,” said U.S. District Judge Catherine C. Blake, chair of the Judicial Conference’s Defender Services Committee. “The Criminal Justice Act and the right to counsel have greatly strengthened the fairness and integrity of our system of justice.”
Today, nearly 90 percent of federal criminal defendants are aided by lawyers, investigators and experts paid for under the Criminal Justice Act. Hiring in defenders’ offices is intensely competitive, and the quality and vigor of their representation has earned the admiration of federal prosecutors.
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Right to Counsel: Early History
Many Americans believe the right to a court-appointed lawyer began with Gideon v. Wainwright, a famed 1963 Supreme Court decision in which Clarence Earl Gideon, a Florida drifter, argued that he could not be sent to prison without a lawyer to argue his case.
But the right to appointed counsel has been centuries in the making. The seeds were planted in colonial times, long before the Bill of Rights.
Although English courts explicitly banished lawyers from felony trials, several colonial charters declared a right to hire lawyers, and 12 of the 13 former colonies specified such a right before the U.S. Constitution was drafted. In 1791, the Sixth Amendment made a right to counsel the law of the land.
Despite those guarantees, the Constitution was silent on a critical question: what happens when a defendant can’t afford a lawyer? More than 140 years passed before the Supreme Court began to address that void.
A 1932 case, Powell v. Alabama, concerned nine black teenagers accused of raping two white girls in Alabama. In just 12 days, they were indicted and then convicted, in trials each lasting just a few hours. Eight of the nine were sentenced to death, including a 13-year-old. None had a lawyer until a few minutes before their trial began.
In a 7-2 decision, authored by Justice George Sutherland, the Supreme Court overturned the convictions and declared for the first time that effective court-appointed counsel is a constitutional right. Although limited primarily to capital cases, the opinion eloquently described the plight of anyone charged with a serious crime.
“Even the intelligent and educated layman,” Sutherland wrote, “requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”
While important, the rulings provided no funding. Lawyers appointed by federal judges were not paid for time or expenses. Hiring experts or investigators to build a defense could be prohibitively expensive.
From 1937 to 1949, every Judicial Conference of the United States and every U.S. Attorney General tried to rectify that, urging that Congress compensate lawyers appointed in federal criminal cases. In 1952, the Judicial Conference called the lack of compensation “a serious defect in the Federal judicial system.”
While important, the rulings provided no funding. Lawyers appointed by federal judges were not paid for time or expenses. Hiring experts or investigators to build a defense could be prohibitively expensive.
From 1937 to 1949, every Judicial Conference of the United States and every U.S. Attorney General tried to rectify that, urging that Congress compensate lawyers appointed in federal criminal cases. In 1952, the Judicial Conference called the lack of compensation “a serious defect in the Federal judicial system.”
In March 1963, the Gideon decision declared a right to appointed counsel in state felony cases. And in July, Senator Roman Hruska (R-Neb.) told a Senate Judiciary Committee hearing, “Our nation’s concept of due process requires that poverty shall be no handicap in the defense of any person.”
Robert Kennedy testified at that same hearing, and in a July 1963 newspaper op-ed, he wrote that the existing system “is unfair to defendants. It is a burden on private attorneys. It denies equal justice. It demands correction.”
After a year of negotiating, the Criminal Justice Act was passed Aug. 7, 1964, providing hourly fees and expenses for court-appointed lawyers. President Johnson signed it into law on Aug. 20.
Six years later, Senators Barry Goldwater (R-Ariz.), Hruska, and Edward M. Kennedy (D-Mass.) co-sponsored a 1970 amendment that established federal defender organizations, which could hire full-time government defense lawyers.
“The personal freedom of the individual citizen is at stake in these cases,” Goldwater declared at a 1969 Senate hearing, “and I want to be sure that his liberty does not become an accidental casualty to the size of his wallet.”
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- Criminal Justice Act: A Landmark in the Right to CounselAugust 20, 1964—the President signed into law the Criminal Justice Act (CJA), which for the first time assured professional legal… Read more: Criminal Justice Act: A Landmark in the Right to Counsel