Blog
Racial Justice
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 Nicole Austin-Hillery – 04/21/10
As a first-generation African-American female civil rights attorney, I have always been aware of the sacrifices that were made and the lives given so that I could attach that title to my lowly name. I was reminded of these sacrifices yesterday, on hearing the news of the death of Dr. Dorothy I. Height, one of the pre-eminent civil rights pioneers and President Emeritus of the National Council of Negro Women. Dr. Height’s passing comes on the heels of the death of another civil rights giant, Dr. Benjamin Hooks, former head of the NAACP. This seems a good moment to take stock of the civil rights warriors whose lives embolden me and sparked my decision to become a civil rights attorney.
Some people are enamored with celebrities and the lives they lead. I am enamored by the civil rights leaders whose decisions to stand up and oppose what is wrong – with their voices, their bodies, their lives – changed the way all Americans live their lives.
This morning, I stopped to reflect on the privilege I’ve had to meet some of my heroes and heroines and to say, thank you. Early in my career I met almost all of the Little Rock Nine; I remember feeling as though the stories that I read about their desegregation efforts had suddenly come to life! I was nearly speechless when I met Congressman John Lewis; I’d read his biography “Walking With the Wind” and made my way to his office where he graciously answered my questions as I tried to map out how my generation of civil rights leaders might succeed, as he had, in forging change. I still get chills when I think about meeting Dr. Height in Durbin, South Africa during the World Conference Against Racism and Xenophobia; I remember feeling amazed that her effort to forge equality for people of color and women meant that, despite being wheelchair bound, she was “no ways [too] tired” to travel half-way across the world in a continued quest for equal justice. And how lucky I am to have had the honor of meeting Dr. Benjamin Hooks, just months ago when I listened intently as he told stories of his early years in the struggle.
Today, in some ways, is for me much like the day candidate Obama became President-Elect Obama. I shed many tears that day. Not because this country elected its first African-American President but because I remembered all of the lives that were lost and the blood that was shed so that November 8th, 2008 would be possible. I shed tears today as I mourn the losses of Dr. Benjamin Hooks and Dr. Dorothy Height and remember that I continue to stand on the shoulders of their greatness.
Tags: Democracy, Justice, Racial Justice
By Brennan Center for Justice – 04/11/10
by Deborah J. Vagins and Erika Wood
Originally published at ACS Blog.
In our recent Issue Brief for the American Constitution Society, The Democracy Restoration Act: Addressing a Centuries-Old Injustice, we examine an ongoing and deeply problematic barrier to the fundamental right to vote for millions of Americans. Currently, 5.3 million American citizens are denied this right because of a criminal conviction in their past. Nearly 4 million of those who are disfranchised are out of prison, working, paying taxes, and raising families, yet they are without a political voice.
With their roots in the Jim Crow era, many of these laws were originally enacted as a way to prevent African Americans from exercising their newly-won rights under the Fourteenth and Fifteenth Amendments. Their intended effects continue today. While 2.5% of the total U.S. voting age population is currently disfranchised, over 13% of African-American men are denied the right to vote on account of past criminal convictions -- this rate is seven times the national average.
Although in the past decade there have been significant reforms of these laws in the states, there is a compelling need for a federal standard. Some states disfranchise persons on parole or probation while others permanently disfranchise some or all who have completed their sentences. Several states even deny voting rights to persons who have incurred legal financial obligations or have only been convicted of misdemeanors.
This patchwork of laws governing voter qualifications often leads to confusion among both election and criminal justice officials about who is eligible to vote. As a result, countless individuals with convictions who are eligible to vote have been misinformed that they cannot vote, making the number of Americans impacted by criminal disfranchisement even greater. As we discuss in our Issue Brief, a federal standard is the only way to prevent future instances of this de facto disfranchisement and to ensure that all qualified Americans are able exercise their right to vote.
On March 16, 2010, the House Subcommittee on the Constitution, Civil Rights, and Civil Liberties heard testimony from a broad group of experts, election officials, and advocates in support of such federal standard -- the Democracy Restoration Act (DRA). This legislation would restore voting rights in federal elections to the nearly 4 million Americans who have been released from prison; ensure that people on probation never lose their right to vote in federal elections; and notify people coming out of prison about their right to vote in federal elections. By establishing a federal standard for voter qualifications, the DRA would ensure that all citizens have a say in their communities, while at the same time, providing a bright line for government officials who provide voter registration information.
There has been incredible momentum behind reforming criminal disfranchisement laws in recent years. Law enforcement officials, members of the faith community, civil rights and legal organizations, and governors of both political parties have all advocated for the restoration of voting rights. Recently, The New York Times editorialized in favor of the DRA, writing that "it goes against one of democracy's most fundamental principles: that governments should rule with the consent of the governed."
However, without a national standard, the United States remains one of the only industrialized democracies where significant portions of its voting-age population are denied the ability to participate in civic life. International covenants and declarations recognize the right to vote as a fundamental human right and many countries' have determined that denying citizens with criminal convictions their fundamental rights is incompatible with the principle of equality in the protection of civil and political rights.
As we conclude in our Issue Brief, if passed, the Democracy Restoration Act would not just restore voting rights to millions of Americans; it would finally correct a centuries-old injustice.
The new Issue Brief for the American Constitution Society, The Democracy Restoration Act: Addressing a Centuries-Old Injustice [pdf], by Deborah J. Vagins and Erika Wood, examines an ongoing and deeply problematic barrier to the fundamental right to vote for millions of Americans. Currently, 5.3 million American citizens are denied this right because of a criminal conviction in their past. Nearly 4 million of those who are disfranchised are out of prison, working, paying taxes, and raising families, yet they are without a political voice.
With their roots in the Jim Crow era, many of these laws were originally enacted as a way to prevent African Americans from exercising their newly-won rights under the Fourteenth and Fifteenth Amendments. Their intended effects continue today. While 2.5% of the total U.S. voting age population is currently disfranchised, over 13% of African-American men [pdf] are denied the right to vote on account of past criminal convictions -- this rate is seven times the national average.
Although in the past decade there have been significant reforms of these laws [pdf] in the states,there is a compelling need for a federal standard. Some states disfranchise persons on parole or probation while others permanently disfranchise some or all who have completed their sentences. Several states even deny voting rights to persons who have incurred legal financial obligations or have only been convicted of misdemeanors.
Cross-posted at ACS blog.
Download the brief [pdf].
Deborah J. Vagins is Legislative Counsel for the Washington Legislative Office of the American Civil Liberties Union; Wood is Deputy Director of the Democracy Program at the Brennan Center for Justice.
Tags: Democracy, Voting After Criminal Conviction, Post-Incarceration Restoration of Voting Rights, Racial Justice
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 David Shapiro – 04/02/10
The Muslim charity that alleged the government eavesdropped on its calls without obtaining a warrant won its lawsuit on Wednesday, March 31, 2010. The court did not decide directly whether warrantless wiretapping violates the law, instead, the ruling is important for another reason: the court refused to let the government use the state secrets privilege as a tool to derail litigation.
This was not the first time the government used the state secrets privilege – a doctrine that that allows the government to block evidence thought to compromise national security – in this case. Earlier, the government invoked the privilege to demand dismissal of the entire suit. In 2007, an appeals court rebuffed this attempt to eliminate the litigation outright and sent the case back to the district court.
In the latest round, the government refused to submit evidence to the district court both on whether surveillance occurred and whether a warrant existed, claiming that such matters qualified as state secrets. But this argument contradicted the Foreign Intelligence Surveillance Act, which creates a mechanism for the government to submit evidence to the court on these very issues. In keeping with the law Congress passed, the court rejected this second attempt to use the state secrets privilege to block the litigation.
Read NY Times coverage of the case.
Read the opinion (pdf).
Tags: Justice, Racial Justice, Liberty & National Security, Checks & Balances, Privacy & Profiling
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
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