Academic journal article William and Mary Law Review

Power, Policy, and the Hyde Amendment: Ensuring Sound Judicial Interpretation of the Criminal Attorneys' Fees Law

Academic journal article William and Mary Law Review

Power, Policy, and the Hyde Amendment: Ensuring Sound Judicial Interpretation of the Criminal Attorneys' Fees Law

Article excerpt

The Hyde Amendment(1) brings something new to criminal justice. Enacted in late 1997, this law allows federal courts to award attorneys' fees to prevailing criminal defendants who show that the position of the United States government was "vexatious, frivolous, or in bad faith." Any awards under this statute come out of the budget of the particular offending federal agency, most likely the United States Attorney's Office.

The Hyde Amendment seeks to apply to criminal suits the well-established procedures and limitations of the Equal Access to Justice Act (EAJA),(2) which provides for similar awards against the Government in civil suits.(3) The proponents of the Hyde Amendment mobilized on the perception that the government can be abusive in bringing criminal prosecutions and thereby devastate the lives of defendants who become financially ruined over the course of their defense.(4) The Hyde Amendment has been hailed as a victory for defendants' rights, and a timely response to the abusive acts of government officials.(5)

This Note looks beyond the veneer and exposes the Hyde Amendment as an unequivocal legislative failure to enact law responsibly and as a threat to the sound functioning of the federal criminal justice system. This assessment rests on two related bases.

First, the Hyde Amendment is a simplistic approach to a complicated problem. Congress enacted the Amendment hastily in a highly politicized context of virtually nonexistent opposition, despite the fact that the statute conflicts with well-established and fundamental legal doctrines. Further, Congress did not address these conflicts either during the enactment of the statute or in its ultimate language.

Second, the language of the Hyde Amendment is grossly ambiguous and leaves the judiciary with an impermissible degree of discretion in defining the scope of the law's application. Consequently, this unbridled judicial discretion to review prosecutorial decisions and to impose financial penalties upon the United States Attorneys threatens to weaken the essential function of the executive branch, i.e., the faithful execution of the laws.(6)

This Note consists of four sections. The first section examines the enactment of the Hyde Amendment and exposes the highly politicized context of its passage. The second section discusses both Congress's failure to address three fundamental legal doctrines that directly conflict with the implementation of the Hyde Amendment, and the effect of this failure on judicial interpretation of the statute.

The third section discusses recent district court decisions in which the courts erroneously approached the interpretation of the Hyde Amendment's procedural and substantive provisions. This section also addresses the particular dangers to law enforcement posed by an expansive judicial application of this law. The fourth section recommends various avenues for legislative action that will circumvent the dangers discussed above. In addition, this section introduces a model approach to judicial interpretation that will ensure that courts do not perpetuate the failings of Congress to address the conceptual and doctrinal problems implicated by the Hyde Amendment.


This section discusses the enactment of the Hyde Amendment. It provides a general factual summary of its provisions followed by an examination of the Amendment's legislative history. After a critical discussion of the political context in which this legislation was passed, this section concludes that Congress enacted the Hyde Amendment without due consideration of its consequences.

Enactment of the Hyde Amendment

In its entirety, the Hyde Amendment provides:

   During fiscal year 1998 and in any fiscal year thereafter, the court, in
   any criminal case (other than a case in which the defendant is represented
   by assigned counsel paid for by the public) pending on or after the date of
   the enactment of this Act, may award to a prevailing party, other than the
   United States, a reasonable attorney's fee and other litigation expenses,
   where the court finds that the position of the United States was vexatious,
   frivolous, or in bad faith, unless the court finds that special
   circumstances make such an award unjust. … 
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