NACDL E-News

September 27, 2013; Vol. 12 No. 9

NACDL Fights to Restore Funding for Federal Indigent Defense

NACDL has long focused on state indigent defense reform, often pointing to the federal indigent defense system as a model. That is a system that features a healthy mix of public and prviate participation with adequate funding and resources. Severe funding cuts imposed during the last few months, however, have focused NACDL's attention and efforts on the deepening crisis in federal indigent defense.

Just this week, NACDL drafted and coordinated a joint letter encouraging Members of Congress to sign a letter drafted by Representatives Quigley and Bonamici which urges support for the Federal Defender Services. The letter will be sent to House Speaker Boehner and Minority Leader Pelosi and urges them to address this vital issue during budget negotiations.

NACDL Organizes Constitution Day Hill Briefing on Federal Indigent Defense Crisis

The next seven entries below provide detail on NACDL's extensive efforts in recent months to restore funding for federal indigent defense.

On Tuesday, September 17, NACDL co-sponsored a congressional briefing - "Chipping Away at the Sixth Amendment: Federal Indigent Defense in Crisis" - at the Rayburn House Office Building. The briefing was held to alert Congress to the drastic and ongoing effects sequestration is having on the Federal Indigent Defense system. It began with remarks by Rep. John Conyers (D-MI) and Rep. Bobby Scott (D-VA). NACDL Executive Director Norman Reimer then moderated a panel featuring Cait T. Clarke, Chief Officer, Office of Defender Services, Administrative Office of the U.S. Courts; Norman Lefstein, Professor of Law and Dean Emeritus, Indiana University Robert H. McKinney School of Law; David Patton, Executive Director, Federal Defenders of New York; and Chip Frensley, National CJA Panel Representative. The briefing was co-sponsored by the ABA's Criminal Justice Section, the Brennan Center for Justice, the Federal Bar Association, the ACLU, the NLADA, the Constitution Project and the American Council of Chief Defenders.

At the briefing, each of the speakers emphasized how cuts to both federal defender offices and the rates paid to private attorneys jeopardize the hybrid system of well-qualified public and private attorneys, placing the Sixth Amendment and the integrity of the federal criminal justice system at risk. Cait Clarke, Chief Officer of the Office of Defender Services at the AO said "The model system is the federal defender program because it's a hybrid. It means we have federal defender programs and we have private attorneys, panel attorneys who work on an hourly rate or basis to protect the right to counsel. And they work together in a symbiotic relationship." And Professor Lefstein implored that "The federal program needs to survive intact. It needs to survive as a model for the nation. It should not be permitted to descend to the abysmal level that has been so repeatedly criticized in state and local jurisdictions. It is clearly, however, moving rapidly in the wrong direction. And the cause of justice will be ill-served if this trend continues and should be permitted to accelerate." The panelists further demonstrated how cuts not only diminish the criminal justice system's ability to function, but lead to increased costs in the long-term (through pre-trial incarceration, additional administrative burdens, and the like).

Todd Ruger of the National Law Journal covered the briefing in a piece published on September 18. Ruger's article contains a link to a talking points memo NACDL made available at the briefing. An Op-Ed by Norman Lefstein, one of the panelists at the event, addressing the "Essential role of private lawyers in defending the poor" was published two days after the briefing by The Hill. (See also: Letter from NACDL Executive Director Norman Reimer on the same subject to the Editor of the New York Times, April 24, 2013.)

NACDL Coordinates Meetings with Elected Representatives and Organizes Efforts with Other Stakeholders

NACDL, through its Manager for Grassroots Advocacy Chris Glen, has helped facilitate and schedule meetings for NACDL and affiliate members with their elected representatives both in-district and on the Hill. NACDL has also made a talking points memo available far and wide for use in the extensive advocacy efforts NACDL is spearheading on this issue.

With the Executive Committee of the Administrative Office of the Courts recommending both a deferral of payments to panel attorneys and a rate decrease for the upcoming financial year, NACDL will continue to coordinate national efforts aimed at the restoration of funding to the Federal Indigent Defense System. Together with our affiliates, Federal Defenders, CJA panel attorneys and other stakeholders, NACDL continues to focus its efforts to educate Congress on the dire nature of this crisis and the need for additional funding.

NACDL Submits Letter to Chief Justice and the Executive Committee of the Administrative Office of the U.S. Courts

In August, the Executive Committee of the Administrative Office of the U.S. Courts determined that in addition to a four week deferral of payments to panel attorneys, the rates would be cut as well beginning September 1, 2013, and continuing throughout fiscal year 2014, from $125 to $110.

In advance of that decision, NACDL coordinated and submitted a letter from NACDL and nearly 30 of its affiliates, representing significantly more than 20,000 criminal defense lawyers, to the Chief Justice and the Executive Committee of the Administrative Office opposing further cuts to the federal defenders or to panel rates.

NACDL Executive Director Speaks at "The Criminal Justice Act at 50: The Past, Present, and Future of the Right to Counsel in Federal Courts"

On August 20, NACDL Executive Director Norman Reimer spoke at "The Criminal Justice Act at 50: The Past, Present, and Future of the Right to Counsel in Federal Courts," a special event sponsored by the Federal Bar Association's Criminal Law Section. In his remarks, Reimer drew attention to the latest budget cuts leveled at federal indigent defense and the ongoing difficulties indigent defenders in the states face. Reimer observed that, "You cannot subjugate a fundamental constitutional right to budgetary bean counters or leave it exposed and unprotected from the arbitrary political winds that swirl through this town. If you treat the defense function as a mere line item in a budget, you are shortchanging justice. And you will probably spend more money in the long run."

The event, which was held at the Library of Congress, was aired live and online by C-SPAN. Other speakers at the event included David Mao, Law Librarian of Congress; Geoff Cheshire, Chair of the Federal Bar Association's Criminal Law Section; Honorable Gustavo A. Gelpi, Jr., President-Elect, Federal Bar Association; James R. Silkenat, President, American Bar Association; Thomas Giovanni, Counsel, Brennan Center for Justice, New York University; Cait T. Clark, Assistant Director for Defender Services, Administrative Office of the U.S. Courts; and David Patton, Executive Director of the Federal Defenders of New York.

Click here to read a media alert NACDL issued in advance of the event. A complete webcast of the event is also available here.

NACDL Board Adopts Resolution Opposing Cuts to Federal Defender Offices

At its annual meeting in late July, NACDL's Board unanimously approved a resolution supporting a fully resourced hybrid system of indigent defense; opposing any further cuts to the Federal Defender Offices; opposing any reduction in the rate of compensation paid to assigned counsel under the CJA; and calling upon Congress to create a federally funded, independent Office of Defender Services.

NACDL Submits Letters to Senate Calling for Adequate Funding to Federal Defender Organizations to be Restored

On July 23, NACDL submitted letters to the Senate Judiciary Subcommittee on Bankruptcy and the Courts and the Senate Committee on Appropriations Subcommittee on Financial Services and General Government voicing its concern over deep cuts to the federal public defenders' budget and calling for full funding to be restored. The letters were submitted to coincide with the Senate Judiciary Committee hearing on the impact of the sequester on the courts and funding bill markup in the Appropriations Subcommittee. NACDL submitted the letters jointly with the Constitution Project, the American Civil Liberties Union, the National Legal Aid and Defender Association, and the American Council of Chief Defenders. Complete copies of these coalition letters can be found here.

NACDL Issues Statement on Inadequate Funding and Independence of the Federal Indigent Defense System

Following deep funding cuts that began before the federal sequester and were increased after the sequester took effect, the nation's federal indigent defense system is in crisis. These cuts are having a devastating effect on the nation's federal defenders, and delayed payments are inflicting extraordinary hardship on the small firm and solo practitioners who provide indigent defense services through a panel appointment system. And now, another serious blow has been delivered to federal indigent defense.

In late June, America's federal indigent defense system, known as the Office of Defender Services (ODS), was demoted. ODS not only continues to lack institutional independence, which is critical to our adversarial system and the proper administration of justice, but as of June it has been lowered to subordinate entity status within the Administrative Office of the United States Courts. NACDL has a long and proud history of supporting the independence of the judiciary, as well as appropriate compensation for our nation's judges and resources for our nation's court system, but NACDL also strongly supports full independence for ODS.

Steven D. Benjamin, NACDL's President at the time, took the opportunity as a witness at the House Overcriminalization Task Force's inaugural hearing on June 14 to clearly and forcefully call upon Congress to address the crisis in funding for federal indigent defense. A webcast of that hearing is available here.

NACDL's complete June 25, 2013, statement "Nation's Criminal Defense Bar Sounds Alarm Over Inadequate Funding and Independence of the Federal Indigent Defense System" is available here.

 

Another State Recognizes Counsel is Required at First Appearance Where Liberty is at Stake

In a nearly 200-page opinion and order, U.S. District Court Judge Shira A. Scheindlin in the Southern District of New York ruled on August 12 in the closely-followed, class action case of Floyd v. City of New York that the City of New York “is liable for violating plaintiffs’ Fourth and Fourteenth amendment rights.” The Court further found that “[t]he City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks” and that “[e]ven if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law.” As the City “adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data[,]” the Court found the resulting “disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause.” In a separate 39-page opinion and order (also accessible via the link above; it follows the first opinion and order), the Court ordered remedies, “including immediate changes to the NYPD’s policies, a joint-remedial process to consider further reforms, and the appointment of an independent monitor to oversee compliance with the remedies ordered in this case.”

NACDL President Jerry J. Cox said: “Today’s ruling is a vindication not just of the rights of all New Yorkers, but of all Americans. This opinion’s findings illustrate precisely the pervasiveness of racial profiling in America’s criminal justice system examined in great detail in a recently released report co-sponsored by NACDL, Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System, a critically important and inclusive examination of the profound racial and ethnic disparities in America’s criminal justice system, and concrete ways to overcome them.”

To read more, please click here.

 

NACDL Staff and Members Present at Gideon Symposium

NACDL Indigent Defense Counsel John Gross, NACDL Board and Executive Committee Member Bonnie Hoffman, NACDL Executive Director Norman Reimer, and NACDL Members American University Washington College of Law Professor Jenny M. Roberts and WilmerHale Partner Danielle Spinelli all spoke at "Gideon at 50: How Far We've Come, How Far to Go," an important symposium presented by the Charleston School of Law and the South Carolina Commission on Indigent Defense.

The program, which was designed to evaluate the progress indigent defense has made over the past 50 years and to discuss the need for further reforms, took place on September 20 at the Charleston Museum in Charleston, SC. Norman Reimer spoke on an introductory panel entitled "Gideon's Elusive Promise: 50 Years of Striving."John Gross served on a panel focused on ethical considerations in managing heavy caseloads. Danielle Spinelli moderated a panel on which Bonnie Hoffman sat concerning invocation, attachment & waiver of the right to counsel, while Professor Jenny Roberts spoke on a panel addressing the issue of collateral consequences.

 

NACDL Sponsors Surveillance Discussion and Book Signing Event as Part of White Collar Summer Series

On September 12, NACDL joined with Miller & Chevalier Chartered to host "Who's Watching the Watchers," a well-attended reception and conversation about post-9/11 government surveillance tactics and wider constitutional, privacy and national security issues. NACDL Second Vice President Barry Pollack, a partner at Miller & Chevalier, moderated the panel. Panelists at this White Collar Summer Series event included Matt Apuzzo and Adam Goldman, Pulitzer Prize winning journalists and authors of the new book Enemies Within: Inside the NYPD's Secret Spying Unit and Bin Laden's Final Plot Against America; Mary Ellen Callahan, nationally recognized privacy attorney and former Chief Privacy Officer at the Department of Homeland Security; and Elizabeth Goitein, Co-Director of the Brennan Center for Justice's Liberty and National Security Program. The event included a lively discussion between the moderator, the panelists and the audience as they explored the constitutional, legal and policy issues implicated when individual privacy rights intersect with national security concerns. An audio recording of the event is available here.

More information about the position and how to apply is available here.

 

October National Advocacy Call on Developing Legislation

Please join NACDL's State Criminal Justice Network on Wednesday, October 16, 2013, for its National Advocacy Call on Developing Legislation. Prison Rape Elimination Act (PREA) Commissioner Brenda V. Smith will head the call. Ms. Smith will lead a discussion on the 10th Anniversary of the passage of PREA and the role state advocates should take in ensuring the guidelines are adhered to in their respective jurisdictions. Please RSVP at scjn@nacdl.org.

The PREA was passed by Congress in 2003 with unanimous support from both parties. The act was to "provide for the analysis of the incidence and effects of prison rape in Federal, State, and local institutions and to provide information, resources, recommendations, and funding to protect individuals from prison rape." Via the act, the National Prison Rape Elimination Commission was created and charged with developing draft standards for the elimination of prison rape.

Presenter: Brenda V. Smith teaches at the Community Economic Development Law Clinic at American University. She is also the Project Director for the Project on Addressing Prison Rape. In November 2003, Professor Smith was appointed to the National Prison Rape Elimination Commission by the U.S. House of Representatives' Minority Leader, Nancy Pelosi (D-CA). Professor Smith is an expert on issues at the intersection of gender, crime, class and sexuality. She is widely published and received the Emmalee C. Godsey Research Award for her scholarship. Recent articles include, "Uncomfortable Places, Close Spaces: Theorizing Female Correctional Officers' Sexual Interactions with Men and Boys in Custody" and "After Dothard: Female Correctional Workers and the Challenge to Employment Law." Professor Smith also teaches a seminar on Women, Crime and the Law.

 

Group Admission to the Bar of the U.S. Supreme Court

On September 25, the Maryland Court of Appeals, the state's highest court, ruled in a 4-3 decision that "under Article 24 of the Maryland Declaration of Rights, an indigent defendant is entitled to state-furnished counsel at an initial hearing before a District Court Commissioner." This means that every person brought before a bail commissioner throughout the State of Maryland is entitled to have a lawyer argue for his or her release before bail is set, regardless of the individual's ability to pay for counsel. At least a dozen states and the District of Columbia have now explicitly recognized this right. The case is DeWolfe v. Richmond, No. 34. NACDL filed an amicus brief on behalf of the plaintiffs.

NACDL strongly advocates for the right to counsel throughout the nation at initial appearance before a judicial officer at which liberty is at stake or at which a plea of guilty to any criminal charge may be entered (See:"Board Resolution Urging Recognition of Right to Counsel at Initial Appearance"). The majority in the DeWolfe decision recognized a number of the reasons why the vindication of this right is so critical:

"As numerous briefs to this Court pointed out, the failure of a Commissioner to consider all the facts relevant to a bail determination can have devastating effects on the arrested individuals. Not only do the arrested individuals face health and safety risks posed by prison stays, but the arrested individuals may be functionally illiterate and unable to read materials related to the charges. Additionally, they may be employed in low wage jobs which could be easily lost because of incarceration. Moreover, studies show that the bail amounts are often improperly affected by race." (at 5)

To read NACDL's complete statement, please click here.

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