Issue Briefs
By Laurence A. Benner (March 1, 2011)
ACS is pleased to distribute “When Excessive Public Defender Workloads Violate the Sixth Amendment Right to Counsel Without a Showing of Prejudice,” an Issue Brief by Laurence A. Benner, Professor of Law and Managing Director of Criminal Justice Programs at California Western School of Law. This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role that the federal government can play in helping improve indigent defense systems around the country. This series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court’s 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants.
In his Issue Brief, Professor Benner explains how, by focusing on the absence of counsel at a critical stage of proceedings, rather than on the ineffectiveness of counsel, a set of claims could be considered outside of the analysis required by Strickland v. Washington. Strickland’s two-pronged test requires that ineffective assistance of counsel claims demonstrate that counsel’s deficient performance be both professionally unreasonable and prejudicial. As Professor Benner explains, his litigation strategy avoids the prejudice prong.
As Gideon v. Wainwright and its progeny established, the Sixth Amendment guarantees the assistance of counsel at each critical stage of the proceedings against an accused. The strategy outlined here is premised upon the argument that the period between arraignment and trial—the investigatory stage—is a critical stage at which the accused is entitled to counsel’s assistance. In sum, the argument is that because excessive caseloads make it impossible for defense counsel to conduct a reasonable investigation into factual innocence and/or mitigating circumstances relevant to punishment, this inability to provide “core” assistance of counsel renders counsel constructively absent at a critical stage of the proceedings.
The author describes how the aforementioned litigation strategy could be incorporated into the federal government’s response to the indigent defense crisis via legislation such as the Justice for All Reauthorization Act, which would, among other things, create a federal cause of action for equitable and declaratory relief to address patterns of deprivations of Sixth Amendment rights.
Click Here to Download the Issue Brief.
By Robert C. Boruchowitz (December 16, 2010)
ACS is pleased to distribute "Diverting and Reclassifying Misdemeanors Could Save $1 Billion per Year: Reducing the Need For and Cost of Appointed Counsel," an Issue Brief by Robert C. Boruchowitz, Professor from Practice and the Director of the Defender Initiative at Seattle University School of Law. This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role that the federal government can play in helping improve indigent defense systems around the country. The series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court's 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants.
In his issue brief, Professor Boruchowitz discusses the heavy burden placed on the criminal justice and indigent defense systems around the country by the approximately ten million misdemeanor cases filed each year in state and municipal courts. He observes that minor, non-violent offenses can make up between 40% and 50% of the caseload in some courts and that in addition to the cost of courts, judges, prosecutors, and defense lawyers, "taxpayers expend on average $80 per inmate per day to lock up people accused of things like turnstile jumping, fish and game violations, minor in possession of alcohol, dog leash violations, driving with a suspended license, and feeding the homeless." Professor Boruchowitz highlights diversion programs and reclassifications efforts from around the country that have been very successful in alleviating the burdens and costs imposed by these cases and argues that the U.S. Department of Justice could help advance these reforms through providing education about their benefits and supporting their expansion around the country. He concludes that "[b]y diverting or reclassifying these offenses as non-criminal violations, local and state governments could save hundreds of millions, perhaps more than $1 billion per year. In the process . . . the reduced burdens on millions of defendants would allow them to work and to meet their obligations, and the unfairness related to racial disparity would be reduced."
Click Here to Download the Issue Brief.
Immigration Assistance for Indigent Defenders
By Sejal Zota and John Rubin (October 26, 2010)
ACS is pleased to distribute “Immigration Assistance for Indigent Defenders,” by Sejal Zota, an Immigration Law Specialist, and John Rubin, a Professor of Public Law and Government, at the University of North Carolina School of Government. This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role the federal government can play in helping improve indigent defense systems around the country. The series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court's 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants.
In their issue brief, Ms. Zota and Professor Rubin discuss a Supreme Court decision from earlier this year, Padilla v. Kentucky, that has significant implications for indigent defenders around the country when representing noncitizen defendants. In Padilla, the Court held that "the Sixth Amendment requires defense counsel to provide competent advice to noncitizen defendants about the immigration consequences of guilty pleas." The nature of the required advice varies depending on how clear the collateral consequences are, but this adds a new burden, in an often unfamiliar area of the law, on attorneys who are already stretched to limit of how much work they can handle. Ms. Zota and Professor Rubin address the need to provide support to indigent defenders following Padilla, and discuss the efforts they have undertaken in North Carolina. They conclude that "[t]he federal government could play an enormously valuable role by helping to shape and fund support in this area, ensuring that expert advice about immigration consequences is provided in a systematic and competent way. It has an opportunity to ensure that the quality of indigent defense across the nation continues to improve and the rights of noncitizen defendants are protected."
Click Here to Download the Issue Brief.
ACS is pleased to distribute “Litigation Strategies for Dealing with the Indigent Defense Crisis,” by Eve Brensike Primus, Assistant Professor of Law at the University of Michigan Law School. This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role that the federal government can play in helping improve indigent defense systems around the country. This series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court’s 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants. Indeed, on Monday, the Justice for All Reauthorization Act of 2010 was introduced in the Senate and it includes provisions for which the author advocates.
In her Issue Brief, Professor Primus explores “two potential federal legislative initiatives that could help remedy the indigent defense crisis in this country”: “a federal enforcement action that would allow DOJ (or a private litigant deputized to act on its behalf) to seek equitable relief in federal court whenever a state engages in a pattern or practice of conduct that deprives criminal defendants of their right to effective counsel” and “a new post-trial federal habeas corpus cause of action designed to redress systemic right-to-counsel problems.” Professor Primus explains why access to a federal forum is necessary and the obstacles that have existed until now to federal court review. She also discusses how her proposals can overcome the obstacles and catalyze reform by the states. She concludes that “[p]art of ensuring meaningful long-term reform requires giving indigent defendants access to a federal forum to challenge systemic state practices that routinely violate their right to effective trial counsel.”
Click Here to Download the Issue Brief.
ACS is pleased to distribute “Overcoming Defiance of the Constitution: The Need for a Federal Role in Protecting the Right to Counsel in Georgia,” by Stephen B. Bright, President and Senior Counsel, and Lauren Sudeall Lucas, Staff Attorney, at the Southern Center for Human Rights. This paper is part of a series of Issue Briefs that ACS is publishing focused on ideas for a role that the federal government can play in helping improve indigent defense systems around the country. This series builds on the interest in pursuing reform expressed by Attorney General Eric Holder, Congress, and other federal policymakers to address the crisis in indigent defense that has existed since the Supreme Court’s 1963 decision in Gideon v. Wainwright, the landmark case establishing the right to counsel for indigent defendants. Indeed, on Monday, the Justice for All Reauthorization Act of 2010 was introduced in the Senate and it includes provisions for which the authors advocate.
In their issue brief, Mr. Bright and Ms. Lucas discuss the problems that have existed in Georgia’s indigent defense system since Gideon was handed down. They contend that “[a]ll three branches of Georgia’s government have failed in their constitutional responsibility to ensure that poor people accused of crimes are effectively represented by competent lawyers.” They also argue that “[t]he federal government, which has made immense contributions to the prosecution of criminal cases in Georgia through grants to law enforcement, prosecutors, and courts, shares responsibility for the integrity of Georgia’s criminal justice system and the enforcement of the constitutional right to counsel.” Mr. Bright and Ms. Lucas describe Georgia’s public defender system and its failings, as well as the impact it is having on individual defendants. They then explore how “the federal government can play a role in remedying Georgia’s failure to enforce the right to counsel.” They conclude that “[u]nless the federal government enforces the right to counsel through measures requiring states like Georgia to fundamentally reconceive the way in which they provide indigent defense services, it is unlikely that those states will ever meet their constitutional responsibilities. The cost will be enormous in terms of wrongful convictions, uninformed sentencing, and a criminal justice system that lacks both credibility and legitimacy.”
Click Here to Download the Issue Brief.
Erica J. Hashimoto (September 1, 2010)
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."
Click Here to Download the Issue Brief.
From Error Toward Quality: A Federal Role in Support of Criminal Process
James M. Doyle (July 26, 2010)
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.
A Legislative Approach to Indigent Defense Reform
Cara H. Drinan (July 13, 2010)
ACS is pleased to distribute "A Legislative Approach to Indigent Defense Reform", an Issue Brief by Cara H. Drinan, Assistant Professor of Law at The Catholic University of America, Columbus School of Law. Nearly every person who has observed the criminal justice system in action has seen that there are serious problems with providing representation to poor people accused of crimes. In 1963, 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. Since then, even the best indigent defense systems have been overburdened, underfunded, and faced a host of other problems that undermine the ability of attorneys to zealously and ethically represent their clients. Attorney General Eric Holder, Congress, and many other federal policymakers have taken notice of this crisis in indigent defense and specifically identified reform of the system as a priority. But what can the U.S. Department of Justice, Congress, and other parts of the federal government do to help bring about reform? Professor Drinan's Issue Brief is the first in a series that ACS will be publishing focused on ideas about a possible federal role in improving indigent defense systems in states around the country.
In her Issue Brief, Professor Drinan proposes a piece of legislation that would allow federal courts to hear claims alleging that a state has systemically violated the Sixth Amendment right to counsel. Some lawsuits like this have made progress recently in state courts in New York and Michigan, but suits of this type are still relatively rare and may not be feasible in every state. Professor Drinan argues that "[i]ndigent defense reform advocates need an opportunity to bring systemic indigent defense challenges . . . in the federal courts - courts that have traditionally been a refuge for victims of state constitutional violations." She discusses current obstacles to federal court challenges, and why legislation like what she 
proposes is necessary and appropriate to make such suits possible. Professor Drinan proposes specific statutory language and discusses how it achieves several important goals, such as clearly affirming each state's obligation under Gideon, taking full account of relevant Supreme Court precedent, clearly delineating limits on the proper parties to such a lawsuit, and enabling appropriate remedies. She also addresses several likely concerns that critics may raise about a proposal like hers, and concludes that "[g]iven the national crisis in indigent defense services, bold, timely action like the legislation that I propose in this Issue Brief is required and more than justified. Congress should consider enacting this or similar legislation soon, and the Attorney General should push for its passage."
Click Here to Download the Issue Brief.
Panels
The Federal Role in Improving Indigent Criminal Defense
Events
ACS Student and Lawyer Chapter events on the topic of indigent defense have included the following:
- ACS Georgia Lawyer Chapter presents: ACS Speaker Series: Funding Indigent Defense with a Broken Budget
- Stephen Bright delivers lecture on the state of indigent defense in Georgia
- Texas Indigent Defense at the Supreme Court
- Austin Lawyer Chapter hosts a "Special Report Presentation: America's Continuing Neglect of Our Constitutional Right to Counsel"
- The Intersection of Juvenile Justice and Poverty
- Georgia Lawyer Chapter's ACS Speaker Series: Funding Indigent Defense with a Broken Budget
Podcasts
- Stephen B. Bright, president and senior counsel for the Southern Center for Human Rights, speaks about indigent defense in an interview here.
- Jo-Ann Wallace, head of the National Legal Aid & Defender Association (NLADA), talks with ACSblog about the need for a greater federal role in shoring up state legal services for the poor here.