Gideon Alert: US Senate Judiciary introduces legislation to improve and enforce Sixth Amendment right to counsel services

BY David Carroll on Thursday, September 30, 2010 at 10:21 AM

On September 27, 2010, the United States Senate, Committee on the Judiciary, Chairman Patrick Leahy introduced the “Justice For All Reauthorization Act of 2010” (JFAA 2010).  The Act includes provisions to assist states in improving Sixth Amendment right to counsel services, while simultaneously empowering the Department of Justice (DOJ) to sue those that do not.  In a press release, Senator Leahy said “[t]oday, we rededicate ourselves to building a criminal justice system in which the innocent remain free, the guilty are punished, and all sides have the tools, resources, and knowledge they need to advance the cause of justice.”

The bill states, “[i]t shall be unlawful for any governmental authority or any person acting on behalf of a governmental authority to engage in a pattern or practice … that deprives persons of their rights to assistance of counsel as protected under the Sixth Amendment and Fourteenth Amendment to the Constitution of the United States.”  Whenever the U.S. Attorney General has reasonable cause to believe that a violation has occurred, the Department of Justice may obtain “appropriate equitable and declaratory relief to eliminate the pattern or practice.”  This means that DOJ may sue states, counties or individuals – including indigent defense providers – that are involved in a systemic denial of competent representation.

While this is a powerful reform option to force jurisdictions to live up to the promise of Gideon v. Wainwright and its progeny, JFAA 2010 puts off this new DOJ authority for two years to allow time for states and counties to rectify systemic indigent defense deficiencies.  And, JFAA 2010 recognizes that the federal government has a role to play in helping states and counties avoid such litigation.  The Act provides significant amounts of funding for technical assistance ($25 million over 5 years) to “meet the obligations established by the Sixth Amendment.”

A recent Detroit Free Press story is a reminder that the on-going failure of the state of Michigan to ensure a meaningful right to counsel is, in many ways, the poster child for why these provisions are necessary: Michigan has seen numerous exonerations due in part to ineffective representation; the closing of a crime lab in 2008 that had falsified ballistics reports that were rarely challenged by publicly-paid counsel; and an NLADA report conducted under a concurrent resolution of both chambers of the legislature and in conjunction with the State Bar of Michigan finding that indigent defense is provided by overwhelmed, under-resourced attorneys or denied entirely in many misdemeanor and delinquency courts.  Despite all this, the Wayne County prosecutor has proposed rule changes that would disallow prisoners from presenting new evidence of their innocence any time after the first year of their conviction “if the exculpatory evidence could have been discovered earlier with due diligence – or in other words, good lawyering.”  The Detroit Free Press recounts the ineffective representation provided to non-DNA exonoree Dwayne Provience and his eight-year struggle to prove his innocence.

The JFAA 2010 also contains other important provisions that affect right to counsel systems. The “Effective Administration of Criminal Justice Act” requires greater transparency in the reporting and planning of how DOJ grant funds are used to support the various components of state criminal justice systems.  Requirements under this provision mandate states to submit strategic plans to DOJ on how the distribution of grant funds will impact all stakeholders – including indigent defense providers – and provide a breakdown of how DOJ funds were disseminated among courts, prosecution, law enforcement, corrections, indigent defense, and victim services.

Over the weekend, the Washington Post editorialized that “a well-functioning public defender system is needed to avert the travesty of innocents imprisoned or executed,” in recounting the on-going devolution of the Georgia public defender system, epitomized by the Weis case currently before the United States Supreme Court.  JFAA 2010 seeks to avert such travesties of justice.