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AMERICAN BAR ASSOCIATION

ADOPTED BY THE HOUSE OF DELEGATES

AUGUST 14-15, 2017

RESOLUTION

RESOLVED, That the American Bar Association urges Congress to enact legislation enabling the United States Department of Justice to initiate and pursue civil actions to obtain equitable relief for systemic violations of the constitutional right to the effective assistance of counsel, both directly and through private litigants deputized to file such actions in the name of the United States;

FURTHER RESOLVED, That the American Bar Association urges Congress to enact legislation recognizing the right of private litigants, in their individual capacity or as members of a class action, to obtain equitable relief in federal court for systemic violations of the constitutional right to the effective assistance of counsel.

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REPORT

Introduction

The ongoing crisis in indigent defense is well-documented. Given continued failures by state and local governments to fully enforce the right to effective assistance of counsel, this Resolution recommends that the federal government and private individuals, subject to such violations be granted the tools necessary to ensure that the Sixth Amendment’s mandate is fulfilled. It proposes that Congress vest the Department of Justice with authority to file civil lawsuits challenging systemic violations of the right to counsel. Because the Department will always be severely limited by time and resources, the resolution also recommends that the Department be permitted to deputize private litigants, acting on its behalf, to seek equitable relief for criminal defendants whose right to counsel is being violated. Last, it urges that private litigants be empowered to file such actions in an individual or class action capacity to vindicate their Sixth Amendment rights. This Resolution aligns with the ABA’s consistent recognition of the failure to fulfill the Sixth Amendment’s mandate and its opinion that the constitutional guarantee of effective assistance of counsel must be strictly enforced.

This Resolution does not seek to supplement or alter the means by which an individual convicted of a crime can raise post-conviction claims—for example, through petitions for writ of habeas corpus or ineffective assistance of counsel claims raised on appeal. Rather, the Resolution seeks only to enable the ABA to urge Congress to enact legislation recognizing the validity of prospective claims for equitable relief where systemic violations of the right to counsel are alleged and to enable the Department of Justice to pursue such claims when it deems appropriate.

Background: Gideon’s Promise Still Broken

In the years that have passed since the Supreme Court’s landmark decision Gideon v. Wainwright,[1] various studies have documented the obstacles criminal defendants face in attempting to secure the effective assistance of counsel.[2] Among other things, these studies have highlighted inadequate funding of public defense systems across the country, chronic appointment of incompetent or inexperienced lawyers, severe delays in the appointment of counsel, discontinuity of attorney representation, a lack of training and oversight for attorneys representing criminal defendants, excessive public defender caseloads and understaffing of public defender offices, inadequate or nonexistent expert and investigative resources for defense counsel, and a lack of meaningful attorney-client contact.[3]

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.[4] The problems referenced above, and suggestions for guiding principles that would help to ensure effective provision of defense services to clients, have been chronicled in previous ABA reports and publications[5]—yet the Sixth Amendment’s guarantee to adequate counsel remains vastly underenforced.

Various proposals have been made in an attempt to address the public defense crisis, including calls for better training of public defenders and increased funding for public defense.[6] Yet many of those proposals rely on state governments taking action—often an unlikely solution, given that criminal defendants remain a minority with little to no political clout. Even if such proposals were successful, increased funding and better training alone would not solve all of the problems plaguing public defense, including the problems of insufficient independence and oversight.[7]

While litigation has often been used to seek reform at the state and local levels, it too suffers from critical limitations. Individual defendants may raise a claim of ineffective assistance of counsel, but seeking such relief can take years, and often defendants are not entitled to legal assistance in making such challenges during habeas review.[8] Moreover, many courts have been unwilling to entertain such claims prospectively, before a defendant has already received the ineffective assistance of counsel.[9]

As described below, in several cases, defendants have attempted to bring class-action lawsuits to challenge systemic public defense failures.[10] Although some state courts have been receptive to these claims, many have been hesitant to find such claims justiciable or to address claims regarding systemic deficiencies in performance (as compared to the constructive or actual denial of counsel).[11] The federal courts have often relied on the abstention doctrine in refusing to hear such claims.[12]

The Need for Federal Enforcement to Vindicate the Right to Adequate Counsel

This Resolution suggests Congress should provide the federal government with authority to initiate and pursue lawsuits to protect against systemic violations of the Sixth Amendment for adult defendants, as it already has the authority to do in the context of juvenile defendants (see discussion of 42 U.S.C. §14141 below). In doing so, Congress would merely be allowing the executive branch authority to ensure compliance with the Sixth Amendment, a power the federal judiciary already possesses but cannot fully implement, given procedural obstacles and the inability of pro se litigants to effectively litigate the issue on their own. Given the limited capacity and resources of the federal government, this Resolution further suggests that the Justice Department have the ability to deputize private litigants to file such actions in the name of the United States.

Current Federal Involvement in Public Defense Reform

While this Resolution proposes that the federal government play a more direct role in ensuring compliance with the Sixth Amendment, it has already assumed an important, if limited, role in public defense reform. In recent years, the Department of Justice has taken a more active stance with regard to pending public defense litigation filed by others, due in large part to the creation of the Office for Access to Justice, which was established in March 2010 to address the access-to-justice crisis in the criminal and civil justice system.[13]

The Department has filed a number of statements of interest in important cases regarding systemic public defense failures, includingHurrell-Harring v. State of New York, a class action lawsuit filed in the Supreme Court of the State of New York alleging that due to systemic failures in four New York counties, criminal defendants had been constructively denied the right to counsel. The Department’s brief was filed in September 2014,[14] just weeks before a historic settlement was reached in the case.[15] The Department also filed a statement of interest in August 2013 in federal court in Washington State in Wilbur v. City of Mount Vernon, a class action lawsuit alleging that excessive misdemeanor caseloads prevented public defenders from providing effective representation. Just months later, on December 4, 2013, the district court found a systematic deprivation of the right to assistance of counsel and issued an injunction in favor of the plaintiffs requiring the defendant cities to hire a part-time public defender supervisor tasked with monitoring and reporting on the delivery of public defense representation.[16] In 2015, the Department filed a statement of interest in federal court in Georgia in N.P. v. State of Georgia, a class action asserting that the public defense system in the Cordele Judicial Circuit was so underfunded and poorly staffed that juveniles were routinely denied their right to legal representation.[17] The case settled less than a month after the Department filed its statement.[18]

The Department has also filed amicus briefs in cases like Adam Kuren, et al. v. Luzerne County, et al, a class action filed in the Supreme Court of Pennsylvania alleging that the public defense system in Luzerne County, Pennsylvania, is so underfunded and poorly staffed that attorneys appointed to represent adults accused of committing criminal acts serve as attorneys in name only.[19] The sole focus of the Department’s brief was whether criminal defendants could bring a civil claim alleging a constructive denial of counsel under the Sixth Amendment to the United States Constitution. Notably, the ABA also filed an amicus brief in the Luzerne County case in support of the criminal defendants, arguing that, where excessive workloads and a lack of resources prevent defenders from providing adequate representation, the court should recognize a prospective cause of action and provide systemic relief.[20]

Most recently, the Department filed an amicus brief in Tracy Tucker et al. v. State of Idaho, et al., in the Supreme Court of Idaho. The brief argues, on behalf of the United States, that criminal defendants who cannot afford an attorney may bring a prospective civil lawsuit to prevent violations of their constitutional right to counsel under the Sixth Amendment, rather than waiting to bring an ineffective assistance of counsel claim after conviction.[21] The ability to bring pre-conviction claims is critical to systemic reform and yet they have been “relatively rare” and “deemed cognizable with little frequency.”[22]

Federal Enforcement Authority in Other Contexts

The authority referenced in this Resolution is not without parallel in existing federal law. Congress has created similar enforcement actions to prevent state officials from engaging in systemic violations of civil rights, including 42 U.S.C. § 14141.

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 § 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 the type of authority DOJ now has pertaining to state juvenile court proceedings.[23]

Similarly, the notion that private individuals might be deputized to bring civil actions on behalf of the United States government is not a novel concept. To the contrary, the government’s authority to deputize in areas where the government has a conflict or lacks the time and resources to fully enforce federal law on its own, is grounded in both practice and history. One such example is the qui tam provision of the False Claims Act, 31 U.S.C. § 3730, which authorizes private citizens with independent knowledge of fraud perpetrated against the government to sue and recover a portion of the claim. Other examples of deputization include the independent counsel statute[24], and DOJ’s use of a private attorney (David Boies) for its antitrust suit against the Microsoft Corporation. The general authority to deputize is grounded in practice and history and the DOJ would retain approval over any actions filed on its behalf.

The Importance of Federal Enforcement Authority

As discussed above, a federal enforcement mechanism is necessary to ensure that state and local governments fulfill their responsibility to provide effective legal representation to criminal defendants who cannot afford counsel. As evidenced by decades of reporting on such failures by the ABA and others, many defendants are still not receiving effective legal representation, and states and localities are not solving the problem on their own.

Litigants seeking redress in federal court have been unable to make much headway. Defendants attempting to file civil actions to obtain systemic relief in federal court are often stymied by procedural barriers, like abstention and standing doctrine. By carving out a federal path for such lawsuits, this Resolution supports the availability of a new and untapped mechanism to ensure compliance with the Sixth Amendment. Moreover, it is apparent from the Department’s current, yet limited, involvement—its filing of amicus briefs and statements of interest in right to counsel cases—and the speed with which many of those cases have been resolved after the Department’s appearance in the case, that the federal government possesses unmatched influence in this area.

The Need for Private Enforcement to Vindicate the Right to Adequate Counsel

While the federal government’s influence and power to have an impact through litigation in federal court is tremendous, there still remains a possibility that the Department will fail to pursue such actions or will be unable to do so at the level needed to provide redress for systemic violations across the country. Thus, it is critical that private individuals, subject to such systemic violations, be able to initiate and pursue such actions, either as individuals or as part of a class.

Currently, individual defendants wishing to challenge systemic violations of the right to counsel, or public interest legal organizations bringing challenges on behalf of such defendants—which is often the relevant posture—face myriad obstacles in trying to bring such a claim in federal court. Aside from issues of abstention[25] and standing, many such cases encounter courts only willing to entertain claims of ineffective assistance post-conviction.[26] Therefore, even when the systemic failures are clear, and when representation of indigent defendants will almost certainly suffer as a result, those seeking to raise such a claim cannot seek injunctive relief and prevent further future Sixth Amendment violations from occurring. Instead, they must wait until after conviction (and the consequences that accompany conviction) to file suit. In one recent example, the Utah Attorney General filed a motion to dismiss a class-action challenge to Utah’s indigent defense system, arguing “a criminal defense must first be provided before the Court can determine whether a criminal defendant received constitutionally insufficient counsel.”[27] Although a growing number of jurisdictions allow for such a claim to be filed in state court,[28] and one federal court of appeals has recognized such a prospective cause of action,[29] defendants in other jurisdictions lack a clear path to injunctive relief.