Blog
Indigent Defense Reform
By Sarah Hook – 11/29/11
It has been nearly 50 years since the Supreme Court acknowledged in Gideon v. Wainwright that “lawyers in criminal courts are necessities, not luxuries.” The right to court-appointed counsel is now common knowledge, but the devil is in the details. When does this right attach? For some criminal defendants, it may be too late.
Recently, the Maryland Court of Appeals heard arguments in DeWolfe v. Richmond, in which the Brennan Center participated as a friend of the court. The case involves people who were arrested in Baltimore and detained after a bail hearing. Their requests for an attorney at this bail hearing were ignored. The circuit court ruled that they were entitled to an appointed attorney during the bail hearing because it constituted a “critical stage” in the proceeding.
The Maryland Attorney General is arguing that the initial bail hearing is not a critical stage for three reasons: the proceeding is not yet a “case” under the Maryland Public Defender Act, the hearing is not adversarial, and the lack of counsel is inconsequential because people facing criminal charges are only without counsel for 24 hours. This argument is flawed in each of its points, but more importantly, it demonstrates a disturbing disconnection from the realities faced by people going through the criminal justice system. It is only by elevating process over people that the Attorney General’s arguments are even plausible. A client-centered analysis of the situation reveals how correct the circuit court’s decision was, and why the Court of Appeals must affirm.
People arrested in Baltimore City are taken to Central Booking where charges are prepared and they wait to see a Bail Commissioner. The average wait time until a person is formally charged is 18 hours, during which the person is held in a crowded cell. It is difficult to tell a person who’s locked in a cage that they don’t yet have a “case.”
Viewed from the perspective of the accused, the proceeding is decidedly adversarial. The prosecutor sets out the probable cause for arrest and may request bail. The person then has the opportunity to argue against the prosecutor. Confronted with the authority of the Bail Commissioner and the charges arrayed against them, the accused are being forced to defend themselves against a powerful, professional adversary. Keep in mind that the average person accused of a crime does not have a high school diploma. These are exactly the kinds of circumstances where the advice of a lawyer is “a necessity.”
The Attorney General’s argument that bail hearings are inconsequential is laughably unrealistic. Twenty-four hours in jail is consequential for anyone who experiences it, as Judge Adkins pointed out during oral arguments. And people who can’t pay the amount set by the Commissioner must wait in jail until the next court session, which could be up to 30 days later.
Further, defense counsel is necessary at bail hearings to protect the accused and prevent prosecutorial overreaching. Without the advice of a lawyer, a person may reveal harmful or irrelevant information that could put their job, housing, or immigration status in jeopardy in ways that the right to counsel was designed to prevent. Since the Bail Commissioners are not required to have any legal training, the only lawyer in the room is the prosecutor. At this critical stage, the adversarial system is one adversary short.
The Sixth Amendment was not created to make the criminal justice system easier for the state to administer — it was designed to protect people. In holding that bail hearings are a “critical stage,” the circuit court correctly prioritized people over process. The Court of Appeals should affirm the circuit court’s decision and acknowledge that people have the right to counsel at the initial bail hearing.
Tags: Justice, Criminal Justice, Community-Oriented Defender Network, Indigent Defense Reform
By Thomas Giovanni & Laura K. Abel – 10/28/11
On Halloween, the Supreme Court will hear oral argument in a case illustrating how people and society suffer when indigent defense systems are chronically underfunded. In the case, Lafler v. Cooper, the Court will decide whether the Constitution is violated when an attorney’s advice to reject a plea bargain is based on a laughably poor legal error. However the Court decides, though, the decision will not address the underlying problems that made these errors entirely foreseeable.
In Lafler, Anthony Cooper brings a federal habeas challenge to a Michigan state court conviction. Mr. Cooper was accused of shooting a woman several times in her legs as she was running away. The most serious charge he faced was assault with intent to murder, with the maximum potential sentence being life in prison. The prosecution made a pre-trial offer: plead guilty to assault with intent to murder and take a prison sentence of approximately 4-7 years.
Mr. Cooper’s court-appointed attorney advised him to reject this plea offer, advising Mr. Cooper that because the victim had been shot below the waist, the prosecution could not establish his intent to kill. This advice was egregiously incorrect. Nonetheless, Mr. Cooper followed it and went to trial, where he was convicted on all charges and received a sentence of 15 to 30 years. By listening to his attorney’s incorrect advice, Mr. Cooper’s sentence was approximately four times longer than it would have been under the prosecution’s original plea offer.
This outcome was unfair and unnecessary. But given the state of Michigan’s indigent defense system, it is unsurprising. Michigan lacks many of the basic requirements of a functioning indigent defense system. Each county is required to run its own indigent defense system, without any statewide oversight. In many counties, including Wayne County, where Mr. Cooper’s trial occurred, there are attorneys who are assigned cases without being screened for competence, and are not provided with training or supervision. With this lack of support and oversight, it is inevitable that some attorneys will give bad advice.
These problems are well known. They have been documented in study after study.
The issues were aired publicly in the course of a multi-year class action lawsuit that eventually reached the Michigan Supreme Court. And they have been widely covered in the media.
In the face of all of this evidence, Michigan’s government has repeatedly failed to act. In a 2009 decision, the Michigan Supreme Court eschewed responsibility, saying that only the legislature could remedy the constitutional problems. The legislature has not done so. And just last month, Michigan’s governor established yet another commission to write yet another report on the problem.
Both of the lower federal courts that have addressed Mr. Cooper’s habeas petition have upheld it. The Supreme Court should do the same. But until Michigan makes a serious attempt to provide the constitutionally required level of representation to people facing criminal charges, we will see many more cases involving egregious attorney errors. In a nation founded on the principle of equal justice under law, that is simply unacceptable.
Tags: Justice, Criminal Justice, Indigent Defense Reform
By David S. Udell – 05/07/10
It’s a big week for justice.
Three victories in court this week represent important steps forward in ongoing national efforts to strengthen the role of the courts, secure the right to counsel, and hold government accountable to the rule of law: Hurrell-Harring v. State of New York, Duncan v. State of Michigan, and City of NY v. Maul. Through a series of amicus briefs, the Brennan Center is proud to have played a role in each.
Hurrell-Harring v. State of New York is a landmark decision on the right to counsel, just issued by the New York Court of Appeals. In this suit, brought by the New York Civil Liberties Union and the law firm Schulte Roth & Zabel, the plaintiffs (individuals charged with crimes) argue that systemic deficiencies in how five New York counties provide indigent defense services mean that poor people are regularly denied effective representation in criminal proceedings.
The State had sought to have the lawsuit dismissed, arguing that the individuals charged with crimes should not be permitted to bring an affirmative lawsuit to end the deficiencies, but instead should wait for the legislature to improve the system, or, alternatively, bring post-conviction appeals in their own individual cases. The Brennan Center, in partnership with Richards Kibbe & Orbe LLP, filed an amicus brief on behalf of former prosecutors arguing that the case should be allowed to proceed. The brief emphasized that the deficiencies alleged by the plaintiffs prevent prosecutors from being effective in their jobs and undermine the integrity of New York’s entire criminal justice system.
Writing for the majority, Chief Judge Lippman rejected the State’s arguments and ruled that the case could go forward. The Court concluded that the plaintiffs had alleged facts sufficient to state a claim for the violation of their Sixth Amendment right to counsel, as guaranteed under Gideon v. Wainwright. Critically, the Complaint had alleged both that criminal defendants regularly lack representation during critical stages of their criminal cases, and that even when counsel is appointed, the counsel is so non-responsive and disengaged from cases as to leave defendants effectively without representation at all. The Court also acknowledged the arguments in the Brennan Center brief, explaining that “[t]his action properly understood, as it has been by distinguished members of the prosecution and defense bars alike, does not threaten but endeavors to preserve our means of criminal adjudication from the inevitably corrosive effects and unjust consequences of an unfair adversary process.” This case will now proceed in the trial court.
Also from the New York Court of Appeals this week is City of New York v. Maul. In Maul, the majority held that a trial court correctly authorized a class action to proceed on behalf of developmentally disabled children and young adults, represented by the law firm, Patterson Belknap Webb & Tyler LLP, against state agencies responsible for determining appropriate placements in light of the plaintiffs’ disabilities. In giving a voice to a class of plaintiffs seeking to compel corrective action by the agencies, the decision secures a role for the courts in holding state executive agencies accountable to the rule of law. In an amicus brief that the Brennan Center helped to shape, the Center joined a statewide coalition of organizations urging the Court to recognize the value of the class action device as an essential tool for confronting government inaction that violates individuals’ statutory rights.
And, finally, last Friday, Michigan’s highest court ruled that another right to counsel suit, Duncan v. Michigan, could proceed. This suit, brought by the American Civil Liberties Union, the ACLU of Michigan, and the law firm Cravath Swaine & Moore, on behalf of indigent individuals accused of crimes in three Michigan counties, argued that Michigan’s provision of indigent defense services is constitutionally inadequate. In a succinct order, the Court declared that it is too early to dismiss a case in which plaintiffs allege that failures in the delivery of indigent defense services threaten denial of their constitutional right to counsel. This case, too, will now go forward in the lower court.
The Brennan Center submitted an amicus brief in Duncan, along with NAACP LDF, the Constitution Project, and the National Association of Criminal Defense Lawyers. The Brennan Center was also involved early on in helping investigate the facts and construct the complaint that became the Duncan lawsuit. Additionally, the Brennan Center Strategic Fund (our 501C4 affiliate), has been performing an ongoing role in helping to guide the work of the Michigan Campaign for Justice in advancing a comprehensive reform effort in Michigan.
Together, these cases represent an important step toward ensuring equal justice and affirming courts’ vital role in protecting constitutional rights.
Tags: Justice, Racial Justice, Criminal Justice, Community-Oriented Defender Network, Indigent Defense Reform
By Alicia Bannon – 05/04/10
[new BC letterhead]
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 – 03/01/10
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
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