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Lauren Kirchner: The Best Defense Is Good Offense

The DOJ challenges local public defense programs with court filings that bring national attention to local funding issues.

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Photo taken from the Flickr page of the US Embassy.

By Lauren Kirchner
By arrangement with ProPublica

Shortly before Attorney General Eric Holder announced his resignation last September, he told an interviewer: “Any attorney general who is not an activist is not doing his or her job.” One of Holder’s more activist initiatives received attention last week when The New York Times highlighted how Holder’s Justice Department began the novel practice of filing arguments in state and county courts.

“[N]either career Justice Department officials nor longtime advocates can recall such a concerted effort to insert the federal government into local civil rights cases,” Matt Apuzzo wrote for the Times.

The agency has used so-called “statements of interest” to file arguments in existing court cases—sometimes cases brought by the ACLU, Equal Justice Under Law or other advocacy groups. One issue that’s garnered particular attention from Justice Department lawyers is fair access to legal defense, a right guaranteed by the Sixth and Fourteenth Amendments. The DOJ’s Civil Rights Division has filed four such statements in the past two years, a time in which bipartisan support has emerged for a renewed examination of how local and state governments are providing legal representation to the poor. The department maintains that it does not take a position on the facts of the case, but it argues larger points about civil rights issues with national implications.

“It’s very much like having an amicus brief, but it’s an amicus brief by the United States Department of Justice,” said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers. “That carries a lot of weight. No municipality or state wants to be found to be violating Constitutional rights in the eyes of the Justice Department.”

“The idea that this is somehow symptomatic of some sort of major civil rights emergency in America is just plain crazy.”

As the Times story shows, local prosecutors and defense attorneys for the cities and states that suddenly come under this national microscope may not appreciate the attention, however. Nor do they necessarily agree with the Justice Department’s premise that it is not taking sides in the cases at hand. Scott G. Thomas, the attorney who defended Burlington, Washington in a suit challenging the city’s indigent defense program, objected to the way the case turned Burlington into a political symbol, telling Apuzzo, “it’s the Department of Justice putting their finger on the scale.”

Joshua Marquis, the elected district attorney in Clatsop County, Oregon, who also serves on the executive committee of the board of directors of the National District Attorneys Association, considers problematic indigent defense systems more episodic than epidemic. “The idea that this is somehow symptomatic of some sort of major civil rights emergency in America is just plain crazy,” he said. Where smaller jurisdictions lack funding for indigent defense, it follows that the prosecutors in those same jurisdictions lack funding, too. “To me, that’s just as dire a problem,” said Marquis, “and since, frankly, most victims are poor people and people of color, I would be really impressed to see the United States Justice Department pick that up.”

The Supreme Court ruled in the 1963 case Gideon v. Wainwright that each state had to establish means of representation for defendants who couldn’t afford it themselves. But the federal government only provides best practices, grants and training; it’s left to the states to decide how to interpret Gideon’s mandate and how much money to allocate to it. Some states leave the decisions about indigent defense and funding for it entirely to counties. As a result, the quality of one’s counsel heavily depends on the location of the alleged crime.

The gap between what many Americans consider to be adequate defense, and the reality on the ground in local courts, is what advocates say these lawsuits seek to close.

“It’s very difficult to explain the patchwork quilt that is the right to counsel in America,” said David Carroll, executive director of the Sixth Amendment Center, an advocacy group for indigent defense. “People watch TV cop dramas, where everyone asks for a lawyer in police lockup, and they come back from commercial break, and there’s the lawyer… The difference between what they believe and what’s actually happening is very broad.”

The gap between what many Americans consider to be adequate defense, and the reality on the ground in local courts, is what advocates say these lawsuits seek to close. The potential remains for many more investigations and filings, as well. “The DOJ could almost take a dart, and throw it at a map, and there would be a problem with indigent defense in that particular place,” said Ernie Lewis, executive director of the National Association for Public Defense. “And I don’t think I’m exaggerating.”

Here are the jurisdictions where DOJ lawyers have filed statements of interest in cases addressing indigent defense:

Washington (Cities of Mount Vernon and Burlington)

In an August 2013 statement of interest in Wilbur v. City of Mount Vernon, the Justice Department asked a federal court in Washington to appoint an “independent monitor” to oversee new reforms to the indigent defense system there. This was the first statement of interest of this kind, and advocates say it had a huge impact—in signaling that the Justice Department was going to enforce this issue in a new way, and in tangible changes to the Washington system, as well. The judge in the case “took it and really ran with it, and there’s big changes now happening all across Washington,” said the Sixth Amendment Center’s Carroll.

In the conclusion of his decision, which refers to the 1963 ruling in Gideon, US District Judge Robert S. Lasnik wrote: “The notes of freedom and liberty that emerged from Gideon’s trumpet a half a century ago cannot survive if that trumpet is muted and dented by harsh fiscal measures that reduce the promise to a hollow shell of a hallowed right.”

“By taking action in this case, the Justice Department is sending a clear message: that we will not accept criminal justice procedures that have discriminatory effects,” said Holder in a statement.

New York

Back in 2007, the New York Civil Liberties Union filed a suit on behalf of twenty defendants against the state of New York, arguing that five counties were denying effective counsel to indigent defendants. Ontario, Onondaga, Schuyler, Suffolk and Washington counties did not have a public defense system or standards in place at the time; they had just contracted with private attorneys on an ad-hoc (and apparently inadequate) basis. The Justice Department joined the suit with a statement of interest in September 2014. A settlement followed within weeks, mandating the creation of a new public defense office, standards for defendant eligibility, and more state funding for the attorneys.

Alabama (City of Clanton)

With its statement of interest in February of this year, the Justice Department joined a lawsuit against the city of Clanton for its practice of setting bail without regard for a defendant’s flight risk or ability to pay. Christy Dawn Varden, a plaintiff in the case, was arrested for shoplifting at Walmart, and a judge assigned her a $2,000 bond—$500 for each of Varden’s four misdemeanor charges. Living on $200 a month in food stamps, Varden could not pay the bond, and so stayed in jail. “By taking action in this case, the Justice Department is sending a clear message: that we will not accept criminal justice procedures that have discriminatory effects,” said Holder in a statement. “We will not hesitate to fight institutionalized injustice wherever it is found.” As a result of the case, city officials agreed to reform the way it assigned bail.

Georgia

In March, the Justice Department filed a statement of interest addressing the rights of juveniles accused of delinquency in Georgia. The complaint alleged that officials were denying the juvenile defendants’ right to counsel, by encouraging the children to waive a right that they didn’t really understood they had. It argued that these young defendants were subject to “assembly line justice”; acting Assistant Attorney General for the Civil Rights Division Vanita Gupta said “The systemic deprivation of counsel for children cannot be tolerated.”

Lauren Kirchner is a senior reporting fellow at ProPublica.

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