Following our nation's observance of Labor Day, ACS is pleased to distribute "The Employment Non-Discrimination Act: Requiring Fairness for All Employees Regardless of Sexual Orientation or Gender Identity," an Issue Brief by Maxine Eichner, Professor of Law at the University of North Carolina School of Law. In this Issue Brief, Professor Eichner discusses how gaps in federal law leave many lesbian, gay, bisexual, and transgender (LGBT) workers unprotected against workplace discrimination. Collectively, Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act, and the Americans with Disabilities Act prohibit discrimination on the basis of race, religion, color, national origin, sex, age, and disability, but federal law contains no explicit protection against discrimination based on LGBT status. Limited protection has been offered through some case law interpreting Title VII antidiscrimination and sexual harassment law, but for the most part, LGBT workers are forced to endure incomplete and inadequate protection based on state and local law, if they are lucky enough to live and work in jurisdictions where such protections exist at all. Professor Eichner expresses her view that passage of the Employment Non-Discrimination Act (ENDA) would help fill the void in legal protections. The author states:

"ENDA would ban discrimination based on sexual orientation and gender identity with respect to hiring, firing, and terms of employment. The bill would also protect workers from retaliation. In this way, ENDA is an important step toward ensuring fairness for LGBT workers. The legislation stands for the proposition that like other employees, gay, lesbian, bisexual, and transgender employees should be judged based on their work performance, rather than on their sexual orientation or gender identity."

Professor Eichner opines that ENDA honors an important principle in American law, which is that "[e]mployment decisions should be based on a person's qualifications and job performance, rather than on characteristics unrelated to their work." The Issue Brief concludes with the author's view that:

"The passage of ENDA is a modest, pragmatic step that would help ensure that these workers are judged fairly . . . . In this way ENDA would bring us closer toward realizing the vital promise of ensuring that all persons are treated with equal justice, equal opportunity, and equal dignity under the law."

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ACS is pleased to distribute "Assessing the Indigent Defense System," an Issue Brief by Erica J. Hashimoto, Associate Professor of Law at the University of Georgia School of Law. Professor Hashimoto's Issue Brief is the third in a series that ACS will be publishing focused on ideas for a role that the federal government can play in helping improve the indigent defense system around the country. Attorney General Eric Holder, Congress, and other federal policymakers have taken notice of the crisis in indigent defense that has existed since 1963 when the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one, and they have specifically identified reform of the system as a priority. Professor Hashimoto examines the significant gaps that exist in the data available to evaluate the operation of the system and offers specific recommendations as to what the U.S. Department of Justice (DOJ), through its Bureau of Justice Statistics (BJS), can do to help improve the state of the data and assist with reform.

Professor Hashimoto observes that, "in spite of the fact that we live in an era that is preoccupied with data, we still lack data on the most basic questions related to the indigent defense system." She points out that we do not have the data to tell us "how many defendants are represented by the indigent defense systems" or "how many misdemeanor defendants have a right to counsel." As a result, we cannot determine "what percentage of defendants who are entitled to court-appointed representation go unrepresented." Professor Hashimoto asserts that the limited available data point to regular violations of the Constitution, but that "[w]ithout more complete data, it is impossible to adequately assess this fundamental constitutional right and know the extent of any violations around the country." She discusses several sets of data that are needed and ways in which DOJ and BJS could make significant improvements by collecting and analyzing these data. Professor Hashimoto recognizes that this will not be an easy or costless process, and that data cannot solve all of the problems with the indigent defense system, but concludes that "until we have data establishing the nature and magnitude of the problems and the most effective mechanisms for addressing those problems, we cannot begin the process of systematically solving them."

All of the Issue Briefs that ACS has published as part of this series, as well as other materials related to indigent defense, can be found by clicking here.

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ACS is pleased to distribute “From Error Toward Quality: A Federal Role in Support of Criminal Process,”, an Issue Brief by James M. Doyle. Mr. Doyle is a lawyer in private practice with the Boston law firm of Carney & Bassil and the former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, which is the statewide public defender agency.

Mr. Doyle begins his Issue Brief by observing that “[c]ontemporary medicine is experiencing a vibrant quality reform movement born in the aftermath of horrific reports of fatal medical errors.” Based on the reform experience in medicine, which is a team-oriented effort built on learning from routine human errors to improve practices and “prevent those inevitable errors from ripening into tragedies,” he sees an opportunity for the federal government to “catalyze the willingness of criminal justice practitioners and stakeholders to learn from their own mistakes . . . and lay the groundwork for a continuous quality improvement initiative in America’s criminal justice systems.” With the federal government’s help in designing a common template for assessing errors in the system, serving as a clearinghouse for collecting and sharing the analyses of errors performed at the local level, and providing other modest technical and financial support, Mr. Doyle believes that this effort could “set in motion a cultural shift that improves criminal justice, not by imposing top-down federal micro-management, but by exploiting the talents and insights of local systems’ frontline practitioners.” He also believes that it could “change a culture to one that routinely, every day, concentrates on improving the reliability of the criminal process for the victims, the accused, and the public.”

Mr. Doyle’s Issue Brief is the second in a series that ACS will be publishing focused on ideas about a possible role that the federal government can play in improving indigent defense systems in states around the country. Attorney General Eric Holder, Congress, and many other federal policymakers have taken notice of the crisis in indigent defense that has existed since 1963 when the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one, and they have specifically identified reform of the system as a priority. Mr. Doyle’s systemic approach to criminal justice reform, which he believes will help identify problems that undermine compliance with the Sixth Amendment, offers another recommendation as to what the U.S. Department of Justice, Congress, and other parts of the federal government do to help bring about reform.

Click Here to Download the Issue Brief