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Criminal Justice
By Alicia Bannon – 05/04/10
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A lawsuit challenging Michigan’s inadequate defense services for the poor received an important victory on Friday, when the Michigan Supreme Court ruled that the suit could go forward. Now the spotlight shifts to New York, where a similar lawsuit, Hurrell-Harring v. State of New York, is pending before New York’s highest court, which could issue a decision at any time. These two cases represent the cutting edge of an important national movement to ensure that individuals have adequate representation in criminal proceedings.
In Duncan v. State of Michigan, a group of indigent people charged with crimes, represented by the American Civil Liberties Union of Michigan, maintained that the indigent defense systems in three Michigan counties deny countless poor people the right to effective representation in their criminal trials, violating both the United States and Michigan constitutions.
According to the plaintiffs, these counties fail to provide even basic resources and safeguards to provide criminal defendants with competent representation – for example, attorneys lack supervision and training, there are no performance or eligibility standards to monitor their work, and there are no standards for attorney workload to ensure that attorneys have adequate time and resources to properly represent their clients.
The result is that poor defendants routinely lack representation that meets even the basic standards of the legal profession. And the consequences are grim – including wrongful convictions (with the real wrongdoers roaming free), excessive incarceration, and costly delays and appeals that burden prosecutors’ offices and courts.
Moreover, as the Brennan Center argued in an amicus brief to the Michigan Supreme Court, filed jointly with the National Association of Criminal Defense Lawyers, the NAACP Legal Defense & Educational Fund, and the Constitution Project, many of the harms to the accused that result from inadequate representation cannot be remedied after-the-fact by post-conviction proceedings. For example, when attorney error leads to the wrongful denial of bail, no post-conviction review can undo the loss of liberty, as well as the resulting disruptions to work, family, and other important life commitments.
In allowing this suit to go forward, the Michigan Supreme Court implicitly recognized the vital role that the judicial branch plays when state action (or inaction) threatens systemic violations of constitutional rights. As the lower court explained in its earlier ruling [pdf],
“We cannot accept the proposition that the constitutional rights of our citizens, even those accused of crimes and too poor to afford counsel, are not deserving and worthy of any protection by the judiciary in a situation where the executive and legislative branches fail to comply with constitutional mandates and abdicate their constitutional responsibilities, either intentionally or neglectfully. . . . Judicial modesty does not equate to ignoring constitutional obligations.”
The current focus on reform extends far beyond Michigan. Across the country, in places that have forever failed to adequately guarantee the right to counsel, litigation, public education, exonerations, and community impatience are prompting states to act. Georgia, Montana, and Texas are three states with new statewide public defender systems. The progress isn’t perfect, of course; for example, Georgia has already backtracked on some of its reform efforts. But the progress is significant, and it is just the beginning.
Right now, all eyes are back on New York. Like Michigan, New York regularly denies poor defendants effective representation, particularly in counties outside of New York City. And like Michigan, New York has a legislature that has consistently failed to fix the problem. New York’s highest court should follow Michigan’s lead and ensure that all individuals – rich and poor – are guaranteed their constitutional right to counsel. When all else fails, it is up to our courts to ensure that justice is done.
Tags: Justice, Racial Justice, Criminal Justice, Community-Oriented Defender Network, Indigent Defense Reform
By Brennan Center for Justice – 04/27/10
The U.S. criminal justice system is burdened by myriad problems ranging from over-incarceration to racial and ethnic disparities in prosecutions. In the long term, the high costs of incarceration and the effects of a flawed system are unsustainable. At a press conference the morning of April 27, a bipartisan group of Representatives announced the introduction of a bill that aims to create a transparent, bipartisan Commission that will make recommendations for reform based on a comprehensive national review of our Criminal Justice System. Read more about the bill and the Commission it aims to create.
Tags: Justice, Racial Justice, Criminal Justice, Indigent Defense Reform, Sentencing Reform
By Alicia Bannon – 04/08/10
Originally published at newsday.com.
If you are poor and charged with a crime in Suffolk County, don’t expect that your court-appointed lawyer will have the time, resources and training to investigate your case — or that you’ll even have the chance to talk with him or her outside of open court. Across New York, poor people accused of crimes are routinely being denied effective representation in their criminal proceedings, and prosecutors have finally begun raising the alarm.
Recently, 62 former prosecutors — including Robert Morgenthau, who was Manhattan’s District Attorney for more than 30 years — joined a brief authored by the Brennan Center for Justice, calling on New York’s highest court to allow a lawsuit to go forward that demands that the state fix how it provides defense services for those who can’t afford to provide for their own defense. In the underlying case, the plaintiffs describe deeply troubling deficiencies in how five New York counties, including Suffolk, defend the poor. The suit — Hurrell-Harring v. State, which was brought by the New York Civil Liberties Union — claims that people often lack counsel at bail hearings and other significant proceedings.
It claims that even when people are represented, their attorneys lack adequate training, supervision and resources. Defense counsel are said to rarely investigate cases, file necessary motions, negotiate plea agreements or even meet with their clients.
Deficiencies of this sort have disastrous results, including wrongful convictions, the wrongful denial of bail, charging defendants with more serious crimes than justified by their conduct, and over-incarceration. In one case, for example, a lawyer never met with his client outside of open court and did not seek to dismiss his client’s indictment, even after the judge questioned its basis. In another, an attorney told her client he had a “dead case” — despite admitting that she had never looked at any files nor conducted any independent investigation of the matter.
The damage caused to poor defendants is obvious. But prosecutors, and the justice system itself, are also harmed by New York’s system. Prosecutors rely on defense attorneys to test theories of guilt and to bring forward evidence of innocence — that’s how the adversarial justice system works. When the system breaks down, prosecutors, and the public, can’t be confident that justice is being done in individual cases.
Although this lawsuit focuses on deficiencies in five counties, the biggest problem lies with New York’s legislature. Rather than provide state-level oversight and funding, New York has left each of its 62 counties to establish, fund and administer their own public defense programs. It’s a structure that simply does not work.
And while fixing New York’s system will cost money, so will not fixing it. Ineffective assistance leads to delays and retrials that burden prosecutors’ offices and the courts, as well as unnecessary or excessive incarceration for which New Yorkers foot the bill. It also leads to less tangible costs, such as the harm to public safety when wrongdoers remain at large when an innocent person is convicted, and the harm to public confidence in our justice system when we can’t trust the outcomes of criminal proceedings.
People knowledgeable about New York’s system have been calling for centralized funding, greater resources and the establishment of a statewide defender office for years. Indeed, a 2006 report commissioned by New York State’s chief judge at the time, Judith Kaye, described a “crisis” in indigent defense services — including widespread violations of defendants’ constitutional rights — and urged the State Legislature to act.
Former prosecutors have now joined this growing chorus for reform. Must the legislature wait for a court order before it ensures equal justice for all?
Tags: Justice, Racial Justice, Criminal Justice, Community-Oriented Defender Network, Indigent Defense Reform
By Brennan Center for Justice – 03/29/10
Mar. 29 - The State of Michigan produces more than its share of wrongful convictions, improper denials of bail, fees demanded when none are due, and defendants that languish in jail unnecessarily. All of these disproportionately harm African Americans, and are the result of an inadequate public defense system. Today, the Brennan Center filed an amicus brief with the Michigan Supreme Court, siding with defendants of a stalled class-action lawsuit. The suit claims the State regularly denies poor defendants their right to counsel -- and even when defendants do get representation, their attorneys lack adequate training, supervision, and resources. The brief argues that these practices violate criminal defendants’ right to counsel, and that reviewing criminal convictions after-the-fact cannot fully remedy the harms caused by ineffective representation.
Tags: Justice, Racial Justice, Criminal Justice, Indigent Defense Reform
By Brennan Center for Justice – 03/22/10
Mar. 23 - This week marks the 40th anniversary of one of Justice Brennan's greatest legacies, the Goldberg v. Kelly decision, a case nominally about procedural due process but, at its heart, about dignity and fairness for all when dealing with their government. Goldberg established that individuals could not be deprived of government benefits without notice and an opportunity to make their case at a fair hearing. The decision, of which Justice Brennan was reportedly the most proud, was animated by real-life concern for those who struggled "in the face of … 'brutal need.'"
"Thus the crucial factor in this context . . . is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy." - Justice Brennan
Our Access to Justice project builds upon this legacy to promote equal access to courts and bureaucracies that render life-changing decisions every day.
Read more about our work to:
Tags: Justice, Civil Justice, Criminal Justice
By Brennan Center for Justice – 03/01/10
Harvard Professor Laurence Tribe will head a DOJ-push to strengthen indigent defense. Attorney General Holder urged renewed commitment to legal defense for the poor at this year's Brennan Legacy Awards Dinner and at the 2010 Indigent Defense Symposium. "Ours is an adversarial system of justice -- it requires lawyers on both sides who effectively represent their client's interests," Holder said at our dinner. "When defense counsel are handicapped by lack of training, time, and resources...we start to wonder: Is justice being done? Is justice being served?"
Tags: Justice, Racial Justice, Civil Justice, Civil Legal Aid, Criminal Justice, Indigent Defense Reform
By Brennan Center for Justice – 02/18/10
Watch live video on C-SPAN2 today of the Department of Justice National Symposium on Indigent Defense, off and on until 3:00pm.
Brennan Center counsel Melanca Clark will be part of the panel at 10:45am, "The Evolving Role of the Public Defender".
Tags: Justice, Racial Justice, Criminal Justice, Community-Oriented Defender Network, Indigent Defense Reform
By Emily Savner – 12/03/09
Putting the Sixth Amendment Aside…
In a dramatic policy shift, the Nevada Supreme Court has directed Las Vegas (Clark County) judges to begin charging fees to indigent defendants for their representation by the public defender’s office, according to the Las Vegas Review-Journal.
No formal court rule has yet been issued by the Supreme Court or the Clark County District Court, and, according to the Clark County Public Defender, details regarding the fee’s imposition and collection are still murky. However, as of last week, assessment of the shotgun fee was nonetheless scheduled to go forward.
Clark County will follow the lead of Washoe County (Reno) by charging indigent defendants for the cost of their legal representation. Clark County’s new fee will operate on a sliding scale, with the fee will range from $250 to $750 depending on how much time the defender spends on the case and whether or not the case goes to trial, according to the Las Vegas Review-Journal. Individual judges will be tasked with determining how much of the fee is assessed in a particular case, according to the report.
“This is their co-pay,” one district court judge told the Review-Journal. “Now we're an HMO.” Although a callous way to analogize the justice system, a move toward financing the court with “user fees” is a business model Nevada is not alone in adopting. Instead of funding courts through higher state appropriations for the judiciary, jurisdictions across the country are upping all kinds of fees collected from the pockets of criminal defendants, as state revenue collected from other sources slows. Crime is one rock-solid investment, even in recessionary times.
At least, the Review-Journal reports, revenue collected from this new fee will go toward funding indigent defense services. The same cannot be said of other jurisdictions, where courts’ user fees fund completely unrelated state functions.
Where does the right to counsel play into all this? Seemingly, nowhere.
Read the rest of this story ...
Tags: Justice, Criminal Justice, Fees & Fines
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