Download Briefing Paper for House Judiciary (August 31, 2009).

BRIEFING PAPER: FEDERAL ACTION TO ENSURE THE
RIGHT TO COUNSEL IN THE UNITED STATES
SUBMITTED TO
UNITED STATES HOUSE JUDICIARY COMMITTEE
SUB-COMMITTEE ON CRIME, TERRORISM & HOMELAND SECURITY
AUGUST 2009
BY
AMERICAN CIVIL LIBERTIES UNION, BRENNAN CENTER FOR JUSTICE, THE CONSTITUTION
PROJECT, THE INNOCENCE PROJECT, NAACP- LEGAL DEFENSE & EDUCATIONAL FUND, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, NATIONAL LEGAL AID & DEFENDER ASSOCIATION
*****
The Problem: Though nearly 50 years have passed since the United States Supreme Court deemed the
right to counsel “fundamental and essential to fair trials,”1 indigent defense services in the United States
are in a perpetual “state of crisis.”2 Many states either have been unable or unwilling to adequately fund
and administer indigent defense delivery systems. Instead, they permit the judiciary to improperly inject
itself into the defense function; force attorneys to carry excessive caseloads; fail to provide attorneys with
the investigators, experts and support services they need to uphold the basic parameters of adequate
performance; neglect to provide any type of meaningful supervision to hold lawyers accountable for less
than zealous representation; and refuse to make available on-going training to keep attorneys abreast of
ever-evolving criminal justice sciences. These underfunded and poorly administered systems compromise
the ability of the lawyers employed by or under contract with those systems to meet their constitutional
and ethical obligations to their clients.
The states’ inability to provide necessary resources and administration not only jeopardizes the
administration of justice in courts overseeing the adjudication of felony and juvenile cases, but also in
misdemeanor courts. In such courts, jurisdictions oftentimes attempt to save money and expedite the
processing of cases by: pressuring the accused to waive his right legal representation without adequately
informing him of the consequences of that waiver; offering him a plea agreement that will result in his
release from jail before he has been approved for a publicly-financed defense counsel; denying counsel
outright based on unfair financial responsibility requirements; or, threatening to access large fines and
costs if he insists on legal representation.3
Rather than ensuring that this cornerstone of our democracy is not abrogated, the federal government
actions further exacerbate the problems by investing in state law enforcement agencies without analogous
resources going to courts and defense systems to process and defend clients resulting from the increase in
arrests and placing numerous hurdles that make it all but impossible for citizens to hold the states
accountable for their actions in federal courts.
The Solution: The depth and breadth of our nation’s indigent defense crisis necessitates a multi-pronged
approach to ending the systemic deficiencies identified above, including immediate and long-range
actions by the United States Department of Justice (DOJ) and Congress. Though member organizations
of the National Indigent Defense Collaboration (NIDC) recognize that such a multifaceted reform plan
requires different pacing for each of our recommended actions, the constitutional crisis will not be
ameliorated by the passage or institutionalization of any one recommendation in isolation. Thus, the
presentation of requested Congressional actions is described in tandem with those required of the
executive branch. This briefing paper anticipates input from Congressional and DOJ actors before
finalization into an action plan and reflects divergent organizational views in how best to accomplish four
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basic tenets of reform we unanimously hold in common: accountability; adherence to standards, adequate
resources, and fairness.
Accountability: There is no: 1) collection, analysis and dissemination of nation-wide public defense
data4; and 2) accounting of how federal dollars are spent on criminal justice initiatives at the state level.5
Without such data, decision-makers are left to form policy based on anecdotal information, and the
formation of public attitudes is consigned to speculation, intuition, presumption, and even bias. DOJ and
other relevant federal agencies should begin the process of gathering, analyzing and publishing such data.
However, a long-term commitment to ensuring that right for every person accused of a crime in this
country who cannot afford counsel may require a single, independent, non-partisan federal agency with
funding and oversight responsibilities Such an office could not only gather data, but also promulgate
national standards, ensure equitable distributions of federal funds, conduct assessments of individual
systems according to the national standards and provide technical assistance to systems needing guidance
in meeting the requirements of the Constitution. The American Bar Association endorsed such a federal
center over thirty years ago, spurring the introduction of proposed legislation in both the United States
Senate and House of Representatives. The ABA again endorsed the concept with a resolution passed in
2005. In 2009, The National Right to Counsel Committee made a federal defender center a cornerstone
of its federal recommendations.
For further information see: 1) American Bar Association (ABA), Standing Committee on Legal Aid and Indigent
Defendants, Recommendation for Establishment of a Center for Defense Services (1979), [www.indiegentdefense.org];
2) ABA, Gideon’s Broken Promise, note 108, Chapter 2, at 41 (Recommendation 2); 3) The Constitution Project,
Smart on Crime: Recommendations for the Next Administration and Congress [www.2009transition.org]; 4) National
Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel,
Chapter 5, Recommendation 10 at page 198. [www.tcpjusticedenied.org].
Adherence to Standards: Since the American Bar Association’s (ABA) Ten Principles of a Public
Defense Delivery System (Ten Principles) constitute the fundamental criteria necessary to design a system
that provides constitutionally adequately legal representation for criminal defendants unable to afford an
attorney, reform actions by both the DOJ and Congress must aim toward having all fifty states and
territories come into compliance with the Ten Principles. The Federal government could: 1) create a new
state assistance program whereby states may receive funding for indigent defense if they develop and
implement a plan to bring their indigent defense system into compliance with key elements of the Ten
Principles (independence, caseload controls, and performance standards); or, 2) Congress could create
mechanisms for the enforcement of the right to counsel by the Civil Rights Division of the U.S.
Department of Justice and/or private citizens; or, 3) both.
For further information see: 1) The Constitution Project, Smart on Crime: Recommendations for the Next
Administration and Congress [www.2009transition.org]; 2) Drinan, Cara. Toward a Federal Forum for Systemic Sixth
Amendment Claims. Washington University Law Review. Volume 86:6, October 22, 2008.
Adequate Resources: Congress can ensure that federal dollars that support criminal justice in the states do
not create an imbalance in local systems that result in negative, unintended consequences for public safety
by: a) amending legislation to require that whenever boards are created to allocate or oversee federal
criminal justice grant monies public defense representatives are included on those boards; b) specifying
that Byrne/JAG and other criminal justice-related funding must support public defense service; c)
determining a formula for distributing criminal justice or juvenile delinquency grant funding that requires
that public defense systems receive a set percentage of any funds allocated to police and prosecutor
offices; and/or d) requiring states seeking grant money for law enforcement, prosecution or corrections to
submit a justice system impact statement that describes how the enhanced resources would affect the
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other system components and steps the state will take to ensure adequate resources in the affected
agencies. Additionally, Congress should make real the promise of the John R. Justice Prosecutors and
Defenders Incentive Act, P.L. 110-315, Title IX, Part E (“JRJ”) by fully funding the Act.
In addition to increased federal dollars, the nation’s caseload crisis can be addressed with systemic
approaches to reduce the number of cases requiring public defenders in the first place. Reclassification of
crimes to civil infractions would remove large numbers of cases into other arenas that do not require the
constitutional right to counsel to attach and has the support of conservative think tanks like the Heritage
Foundation and Cato Institute. Congress should authorize DOJ to make funding available to states to
have them set up statewide criminal justice coordinating committees to undergo a thorough review of
potential approaches such as reclassification or providing local law enforcement more discretion to charge
certain non-violent felonies as misdemeanors or infractions.
See: 1) The Constitution Project, Smart on Crime: Recommendations for the Next Administration and Congress
[www.2009transition.org]; 2) National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of
Our Constitutional Right to Counsel, Chapter 5, Recommendation 12 at page 200. [www/tcpjusticedenied.org].
Fairness: Though DOJ is tasked with ensuring the fair and impartial administration of justice for all
Americans, the department has historically been headed by a lifelong prosecutor or person with a
prosecution bent. Despite the best intentions, it is difficult to maintain an objective perspective on crime
policy as it relates to the right to counsel. Congress should authorize, or the DOJ should create, the
position of Defender General to ensure that all DOJ policies and funding decisions are balanced with the
views of a defense practitioner.
Congress needs to re-authorize the Justice or All/Innocence Protection Act to meet its original intent by
eliminating the 50/50 split between defense and prosecution so that all funding goes to the defense and
that money be authorized to hire defenders rather than for more limited purposes as currently set out in
the Innocence Protection Act.
See: 1) The Constitution Project, Smart on Crime: Recommendations for the Next Administration and Congress
[www.2009transition.org].
1
Gideon v. Wainwright, 372 U.S. 335 (1963).
See for example: 1) American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken
Promise (2006) [www.indigent defense .org}]; 2) The National Right to Counsel Committee, Justice Denied: America’s
Continuing Neglect of Our Constitutional Right to Counsel, The Constitution Project and the National Legal Aid & Defender
Association (2009) [www.tcpjusticedenied.org]
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See for example: 1) National Association of Criminal Defense Lawyers, Minor Crimes, Major Wastes: The Terrible Toll of
America’s Broken Misdemeanor Courts (2009) [www.nacdl.org]]; 2) National Legal Aid & Defender Association, A Race to the
Bottom – Speed & Savings Over Due Process: A Constitutional Crisis (2008) [www.nlada.org]
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At a minimum, DOJ should annually collect and publish data pertaining to the following: Indigent defense expenditures;
caseload by provider by severity of case type; assigned counsel rates; number of persons under the age of 18 tried in adult courts;
indigency rates; disproportionate minority contact with the criminal justice system (including ethnicity of defendants and victims
at all key decision points in prosecution), number of cases in which the right to counsel is waived in criminal and juvenile courts;
and, staffing of public defender agencies.
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Congress should request that the Congressional Research Service gather data and then regularly track the distribution of all
federal money to state and local criminal justice systems to assess how it is divided between prosecution /police and public
defense providers.
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