The Administrative Office of the United States Courts–whether speaking for all judges, or not–has determined that the Criminal Justice Act does not provide statutory authority for the courts to appoint federal public defenders or CJA panel attorneys to assist with seeking clemency. You can find a memorandum from Judge Bates, along with a legal opinion here.
Here is an overview of the analysis:
On April 13, 2014, the Deputy Attorney General announced a new clemency initiative (“Clemency Project 2014”) for certain federal inmates currently serving lengthy sentences. Clemency is a function and responsibility solely of the Executive Branch, but this initiative may affect the courts, the United States probation offices, and the federal defenders. The Department of Justice (DOJ) has requested that federal defenders be detailed to the Office of the Pardon Attorney to assist in screening clemency applications, and some inmates have requested assistance of counsel. Questions have been raised, however, about the authority to appoint federal defenders or panel attorneys to represent clemency applicants under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A.
In essence, the General Counsel of the AO has concluded that there is no authority under the CJA or any other provision of law for courts to appoint federal defenders or CJA panel attorneys to represent non-capital clemency applicants under the new Executive Branch initiative. In light of that conclusion, we must advise that CJA panel attorneys are not authorized to be paid for non-capital clemency representations. The General Counsel did conclude, however, that agreements may be entered with DOJ to detail federal defenders to the Office of the Pardon Attorney to assist with screening clemency applications, so long as it is on a fully-reimbursed basis.
The General Counsel’s opinion further explains that: “the lack of court authority to appoint the FPDO to represent a clemency applicant would not preclude the FPDO from screening its client files to identify individuals who may satisfy the criteria established under this initiative or from reviewing files to assist another attorney representing a clemency applicant.” Involvement by federal defenders, to the extent consistent with the law and the priorities of each office, may have practical benefits to the courts, probation offices, and clemency applicants. Defenders customarily assist clients, even after sentencing, with inquiries related to incarceration, and may be well-equipped to review presentence reports and other information to determine whether applicants meet the criteria established by the DOJ for clemency. The opinion also acknowledges that “courts have discretionary authority to appoint FPDOs to assist in various administrative tasks for the general benefit of their office, the courts, or the judiciary,” but concludes that there is no authority to appoint federal defenders or panel attorneys to represent individual non-capital clemency applicants.
Here is the key portion of the analysis:
Since the Deputy Attorney General’s address to the New York State Bar Association and the formation of Clemency Project 2014, several U.S. district courts have issued orders (Standing, Administrative, and case specific) pursuant to 18 U.S.C. § 3006A(a)(1) and (c) authorizing FPDOs to represent individuals previously determined to be entitled to appointed counsel in seeking clemency under this initiative.9 Some of these orders cite § 3006A(a)(1) and (c) as authority to appoint counsel “in the interest of justice” and/or as “ancillary” matters, respectively, under the CJA. Others cite the CJA more generally, and still others cite no authority at all.
As discussed above, the power to grant clemency under federal law is a purely executive function; only the President has that power. See Harbison v. Bell, 556 U.S. 180, 186-87 (2009). Moreover, the exercise of that power is not adversarial in nature and does not involve a proceeding at all, judicial or otherwise. Rather, clemency “is the historic remedy for preventing miscarriages of justice where the judicial process has been exhausted.” Herrera v. Collins, 506 U.S. 390, 412 (1993). There is no Sixth Amendment right to counsel for purposes of seeking executive clemency and no statutory right, except in capital cases. Our review leads to the conclusion that there is no authority under the CJA or other law to appoint counsel in non-capital clemency proceedings.
Congress has explicitly authorized CJA counsel appointed in capital cases to file clemency petitions on behalf of financially-eligible defendants. “Each attorney so appointed shall represent the defendant through every subsequent stage of available judicial proceedings . . . , and all available post-conviction process, together with stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” 10 18 U.S.C. § 3599(e). But Congress has not seen fit to provide this authorization in non-capital CJA appointments, whether in the interest of justice or otherwise, although it clearly could have done so if it had been so inclined. See 18 U.S.C. § 3006A(a). “Congress’ decision to furnish counsel for clemency proceedings [under § 3599(e)] demonstrates that it, too, recognized the importance of such process to death-sentenced prisoners[.]” Harbison v. Bell, 556 U.S. at 193.
Though this “memorandum” seems awfully close to an advisory opinion. The Judge seems to endorse a legal opinion finding the courts lacks statutory authority to take certain action. But, there may be no other way for this issue to be resolved, as this is a case for judges alone to consider in the administration of their courts.