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The 2009 calendar year was filled with unprecedented economic challenge. Although the stock market recovered from the free fall of last winter, and the experts report that the recession has technically ended, American employment and consumer spending are still lagging. Worse, as revenue collection remains weak, state budgets are under intense pressure.¹ This has a direct consequence for the rights of the accused. Indigent defense funding, which is sparse in the best of times, is always among the first state expenditures frozen or cut when times are hard. And so, predictably, 2009 was a difficult year for defense services. But paradoxically, several developments this year portend hope that 2010 may be a breakthrough year for indigent defense reform.

Congress and DOJ

This year, Congress recognized the national scope of the crisis in indigent defense representation when it held unprecedented hearings on the growing national crisis. NACDL was among the groups that submitted a briefing paper to the House Judiciary Committee’s Subcommittee on Crime, Terrorism and Homeland Security. The paper set forth several solutions, including proposals to promote accountability, performance standards, resources, and fairness. On June 4, 2009, NACDL President John Wesley Hall offered testimony that specifically highlighted the crisis in the nation’s misdemeanor courts, urging Congress to address the problem of overcriminalization.² 

The executive branch has also turned its attention to indigent defense. After a long period of official neglect, the Department of Justice (DOJ) has reawakened to the reality that the promise of Gideon remains unfulfilled. With refreshing candor and determination, Attorney General Eric Holder has left no doubt that he understands the dimension of the problem and intends to address it. Speaking before a conference of the American Council of Chief Defenders, he observed: “It is clear to me that the crisis in indigent defense has not ended.” He pointedly offered the following pledge: “When I took the oath of office as attorney general, I swore to support and defend the Constitution of the United States. Supporting and defending the Constitution include, in my view, a responsibility to serve as guardians of the rights of all Americans, including the poor and underprivileged.”³ 

Underscoring his determination to act boldly, the attorney general launched a process of consultation with a broad array of groups committed to reform the nation’s indigent defense system. NACDL participated in a meeting with Mr. Holder at which many of these groups presented a consensus action agenda. Among the key points are the following:

• The Department of Justice should support a federal, independent, and adequately funded National Center for Defense Services to assist and strengthen the ability of state governments to provide quality representation for persons unable to afford counsel in criminal and juvenile delinquency cases. In the interim DOJ should immediately establish an Office of Defender General to coordinate support for defense services.
• The Department should seek funding from Congress to provide grants to build indigent defense programs in states that meet minimum performance requirements.
• The Department should file amicus briefs where appropriate to support the right to counsel and systemic indigent defense reform efforts.
• The Department should support legislation to create a federal cause of action to authorize the Civil Rights Division to seek equitable relief for systemic violations of the Sixth Amendment right to counsel by state and local governments.
• The Department should support full funding for the John R. Justice Act to provide debt relief to public service attorneys.
• The Department should support efforts to reclassify petty offenses out of the criminal justice system, oppose overfederalization of crimes, and support reform of charging policies to end the practice of seeking the most severe penalties available.

Mr. Holder directed high-level members throughout the Justice Department to pursue an ambitious reform agenda. He underscored the depth of his own personal commitment by expressing hope that progress in this area would be a key component of his legacy as the nation’s attorney general. Indeed, for the first time in a decade, the Department of Justice is convening a National Indigent Defense Symposium in February 2010 to foment reform.

With an interested Congress and an energized Department of Justice, 2010 may well be a year of breakthrough reform.

Michigan

Also, 2010 might be the year in which critical reform litigation paves the way for significant advances.

A barrier that must be overcome in these lawsuits is a state’s claim that representational deficiency may only be addressed via a postconviction Strickland claim. In essence, states argue that the right to counsel is not a general right to meaningful and effective representation at all phases of a prosecution, but rather one that is personal to an individual defendant and that is enforceable only on direct appeal or in a postjudgment motion following a conviction. An intermediate appellate court in Michigan recently rejected this notion. NACDL is working in Michigan with the Campaign for Justice, which heads a broad-based, bipartisan coalition of 50 organizations that is fighting for a fair and effective indigent defense system. In June, the court sustained the plaintiff’s cause of action, holding that relying upon a postconviction Strickland claim as an absolute requirement defies logic where the allegations concern widespread, systemic instances of constitutionally inadequate representation, and where the requested remedy in the form of prospective relief seeks to curb and halt continuing acts of deficient performance.

New York

An even greater test, and opportunity, looms large in New York. Early in 2010, the state’s highest court will hear argument in a systemic deficiency case that squarely presents the question of whether the right to effective assistance of counsel may form the basis of a claim for prospective relief. NACDL, along with many other groups, will soon submit an amicus brief in support of the plaintiffs. New York’s hodgepodge system of indigent defense has long been decried as incapable of providing meaningful and effective assistance of counsel to criminal defendants who are too poor to engage a private lawyer. Indeed, in 2006 that was precisely the finding of a commission empanelled by the state’s chief judge, following an extensive study and public hearings.

The New York litigation, which was brought on behalf of 20 representative indigent criminal defendants from five counties, alleges that the current underfunded system deprives the accused of counsel at critical stages of the proceedings and creates a severe and unacceptably high probability that they will receive ineffective assistance of counsel. The lawsuit seeks declaratory and injunctive relief to compel New York to adequately fund, oversee, and set standards for its state public defense system. The specific allegations set forth a pervasive pattern in which overburdened and underequipped attorneys routinely fail to meet or confer with clients, or fail to discharge such basic pretrial functions as making timely bail applications, pursuing investigation, or challenging the sufficiency of the accusatory instrument. For example, some of the plaintiffs did not have counsel at arraignment and, as a consequence, remained in custody unnecessarily for weeks or months. Some met their attorneys for just a few moments prior to a court appearance. Still others had critical rights waived without informed consent. In most cases, none had access to investigative or expert services.⁴ 

The lower court denied the state’s motion to dismiss. The intermediate court, however, reversed in a split decision and held that the constitutional right to counsel can only be violated when an individual criminal defendant can establish that he or she was wrongfully convicted as a result of ineffective assistance. This reasoning, of course, fails to take into account that ineffective representation may cause a litany of harms that can never be redressed by a postconviction motion. For example, a defendant who unnecessarily spent time in jail while a charge was pending because no attorney was available cannot obtain relief if the conviction was not the result of ineffective assistance of counsel. Nor is there any relief for those who are acquitted or whose charges are eventually dropped. Further, the incalculable toll of overburdened attorneys incapable of devoting sufficient time to a client may taint the proceedings in ways that can never be discerned, let alone constitute the basis for a reversal.

Accordingly, the New York case presents a rare opportunity to advance reform. Never before has the core question of whether a claim for prospective vindication of the right to counsel been presented to the highest court of one of the nation’s most populous states. Indeed, because New York has a long and rich tradition of upholding the right to counsel, and because it is the nation’s media capital, the case is certain to have national implications. A win there, coupled with an unprecedented federal commitment to support indigent defense efforts, could truly make 2010 a memorable year.

Notes

1. On November 11, 2009, CNNMoney.com reported that dropping tax revenue, rising unemployment, and huge budget gaps are causing havoc across the country. The 10 states facing the greatest crisis are Arizona, California, Florida, Illinois, Michigan, Nevada, New Jersey, Oregon, Rhode Island, and Wisconsin (11/11/news/economy/states_economies/index.htm).
2. John Wesley Hall’s testimony is located at hearings/hear_090604.html.
3. The full text of Attorney General Holder’s remarks can be found at http://www.justice.gov/ag/speeches/2009/ag-speech-090624.html.
4. Since the case turns on the question whether the claim for prospective relief is a cognizable cause of action, and whether the lower court properly denied the motion to dismiss, there has been no fact finding in the case. The claims are merely allegations. Amici, including NACDL, take no position on whether the systemic deficiencies are established in any particular case.

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