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July 20, 2021 Public Defense

Expanding the Federal Role in Public Defense—A Question of Priorities

Malia Brink

The ongoing crisis in public defense is well documented. Although defendants are guaranteed the right to counsel in theory, it often fails to translate into practice; this gap has worsened as state and local budgets have been forced to tighten and the provision of public defense given low priority in the spending of such limited funds. This crisis will inevitably worsen as public defense providers across the country are forced to confront the immense backlog of cases that have accumulated due to COVID-19 court closures. Given continued failures by state and local governments to fully enforce the right to effective assistance of counsel, the federal government should take steps to ensure that the Sixth Amendment’s mandate is fulfilled.

The ABA has long called upon the federal government to do more to support state public defense systems. In 2005, the American Bar Association House of Delegates adopted Resolution 107, which stressed the importance of the federal government’s role in helping to improve public defense services in the states and territories. It called upon the federal government to “provide substantial financial support to the states and territories for the provision of indigent defense services in state criminal and juvenile delinquency proceedings.” ABA Effective Assistance of Counsel Resolution, 2005 AM 107 (2005).

To this end, in May 2019, Senator Kamala Harris and Representative Ted Deutch introduced the Ensuring Quality Access to Legal Defense (EQUAL Defense) Act of 2019. The bill would have established a $250 million per year grant program for five years ($1.25 billion total) to “provide financial support for public defense systems and training programs that aim to improve the delivery of legal services to indigent criminal defendants.” The funds would need to be used to establish a data collection process, develop workload limits, and satisfy specified compensation requirements (e.g., pay parity between public defenders and prosecutors). Additionally, funds would have been made available for nonprofit organizations to provide training for state and local public defense attorneys. The bill would also have reauthorized the student loan repayment program for prosecutors and public defenders and increased the maximum benefit amount. Finally, the bill would have required states that receive grants under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) to report certain critical public defense data.

Upon its introduction, then-Senator Harris said, “After spending my career around the criminal justice system, I’ve seen up close how it can fail to ensure that poor defendants receive a fair trial and due process, as guaranteed to all of us in our Constitution. All too often, our public defenders are overworked and lack sufficient resources. This makes public defense unsustainable over the long haul. And the person who suffers is the defendant, whose liberty is on the line. It’s wrong, and it’s the opposite of justice.” This is a critical acknowledgment of the public defense crisis from the now–vice president and reflects the need for federal leadership to achieve the critical improvements. “I have introduced the EQUAL Defense Act to give public defenders the tools they need to ensure a more effective criminal justice system and to deliver on Gideon’s promise,” Harris added.

The ABA supported the introduction of the EQUAL Defense Act as advancing a number of the ABA’s Ten Principles of a Public Defense Delivery System: Public defense attorneys must be free from untenably heavy caseloads (Principle 5), they should be properly resourced and compensated on a par with the prosecution (Principle 8), and they should have access to meaningful continuing legal education (Principle 9). The Act was also supported by civil rights groups, including the ACLU and the NAACP Legal Defense Fund, public defense groups including the National Association for Public Defense and the National Legal Aid and Defender Association, and public defense providers. The Missouri State Public Defender, Mary Fox, explained that this Act is about equity: “This is an attempt for the federal government to provide additional funding, much as they do for prosecution services throughout the country.”

Although it did not pass during the last congressional session, the Equal Defense Act has been reintroduced in this session. Importantly, Senator Harris is now vice president. The question remains whether she will use this position to not only press for the Act’s passage, but also an even wider role for the federal government in improving state and local public defense as a means of improving equity in the criminal justice system.

There are several additional steps that federal authorities could take to reinforce a commitment to improving public defense, many supported by long-standing ABA policy. One is for the attorney general to reestablish the Office for Access to Justice, which was created in March 2010 to address the access-to-justice crisis in the criminal and civil justice system. In May 2021, the Biden administration took steps to ensure that this would happen and that, once again, access to justice would be a top priority of the Department of Justice (DOJ). To empower this office to effectively pursue change, Congress should enact legislation enabling the DOJ to initiate and pursue civil actions to obtain equitable relief for systemic violations of the constitutional right to the effective assistance of counsel. This extension of authority was endorsed by the ABA in 2017. ABA Right of Action Resolution, 2017 AM 106 (20017). Legislation creating such a right of action was previously introduced by Senator Booker in 2016 as part of the Equal Justice Under Law Act.

At present, the DOJ cannot initiate suits for failure to provide adequate public defense in state or local criminal courts no matter the egregiousness of the violation. The DOJ has long had the power to initiate such suits to protect juveniles through 42 U.S.C. § 14141. Specifically, section 14141 authorizes the attorney general to conduct investigations and, if warranted, file civil litigation to eliminate a “pattern or practice of conduct by law enforcement officers or by officials or employees of any governmental agency with responsibility for the administration of juvenile justice . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” As a result of section 14141, DOJ is authorized to file lawsuits against state officials who systematically deny juveniles their due process rights to effective legal representation. The proposal to provide DOJ with enforcement authority to file federal enforcement actions to obtain equitable relief from systemic right-to-counsel violations is merely an extension of this authority to protect indigent adult individuals.

The DOJ undoubtedly has the interest and expertise necessary to bring such actions. The department has filed states of interest or amicus briefs in support of plaintiffs in any number of critical civil rights actions across the country alleging systemic deprivations of the right to counsel. Those cases included Hurrell-Harring v. State of New York, Wilbur v. City of Mount Vernon, WA, and Tucker v. State of Idaho. The extension of authority is also necessary. Defendants seeking to raise these civil rights claims face myriad procedural impediments that would not similarly encumber a DOJ-initiated civil rights action.

The ABA has also called upon Congress to “establish an independent federally funded Center for Indigent Defense Services for the purpose of assisting state, local, tribal, and territorial governments in carrying out their Constitutional obligation to provide effective assistance of counsel for the defense of the indigent accused in criminal, juvenile, and civil commitment proceedings, and to appropriate sufficient funds for the Center to successfully carry out its mission.” ABA Resolution 2013M104A (Feb. 11, 2013). Similar Resolutions in support of a federally funded center devoted to improving public defense date back to the 1970s. A number of bills to establish such a center have been introduced over the years, most recently the National Center for the Right to Counsel Act, which was introduced by Representative Ted Deutch in July 2019.

There is no shortage of concrete proposals for how the federal government could do more to improve state and local public defense systems as a means of improving the quality of criminal justice for the poor in this country. The only question that remains is whether public defense reform will be among the initiatives the Biden administration chooses to prioritize and how far they are willing to go in expanding the federal role in public defense.

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Malia Brink serves as the associate counsel for public defense to the ABA Standing Committee on Legal Aid and Indigent Defendants.