Public Defense Litigation

In recent years, there has been growing interest in public defense issues nationwide. Several state and national organizations have filed lawsuits challenging practices that undermine public defense and access to justice. Additionally, the U.S. Department of Justice has intervened in many cases in the form of Statements of Interest, on behalf of the plaintiffs. 

 - Constructive Denial of Counsel
 - Languishing in Jails without Charges or Representation
 - Bail Issues: Bond Schedules are Unconstitutional
 - Exorbitant Fees and Fines

Constructive Denial of Counsel

  •  Hurrell-Harring et al. v. State of New York. Lawsuit filed by the New York Civil Liberties Union on November 8, 2007, alleging that criminal defendants were constructively denied counsel in violation of the Sixth Amendment when they were appointed a lawyer in name only (i.e. no meaningful representation), due to lack of supervision or training and excessive caseloads caused by New York’s failure to provide adequate funding, resources, and oversight.
    On September 25, 2014, the Department of Justice filed a Statement of interest in the case making clear that a lawyer in name only is no lawyer at all, and that when “there are severe structural limitations, the absence of traditional markers of representation, or both, the appointment of counsel is superficial and, in effect, a form of non-representation that may violate the guarantees of the Sixth Amendment.” DOJ urged the court to consider whether structural limitations interfered with defense attorneys’ ability to adequately represent their clients, as well as whether or not “traditional markers of representation” such as communication, investigation, and advocacy were present.
    On October 21, 2014, the case was settled. The settlement, which only applies to the five counties that were named in the lawsuit, calls for sweeping reforms in New York's public defender system, including: (i) representation at every criminal defendant's arraignment/first appearance; (ii) setting workload standards to ensure that defense lawyers have the time and resources to provide effective and zealous assistance of counsel; (iii) requiring that New York to spend $4 million over the next two years to increase attorney/client communications, ensure that lawyers are using investigators, interpreters, and experts in their cases, and to improve the qualifications, training and supervision of lawyers who represent indigent defendants; (iv) increasing state-level oversight by the Office of Indigent Legal Services ensuring the constitutional provision of public defender services in the five counties; (v) guaranteeing the commitment of the State of New York to provide sufficient resources to ensure implementation of the reforms mandated by the settlement; (vi) requiring that the plaintiffs receive regular reports that the parties are in compliance with the settlement and, if not, they can return to court to enforce it.
    For more on the Hurrell-Harring case, see NACDL’s page on New York Public Defense, NACDL’s Statements of Interest page, and the NYCLU page on the case.
  •  Wilbur v. City of Mount Vernon. Lawsuit filed by the ACLU of Washington on June 9, 2011, alleging that the cities of Mt. Vernon and Burlington were systematically depriving criminal defendants of their Sixth Amendment right to counsel by maintaining an inadequate public defense system. Specifically, the two cities jointly contracted with two attorneys to provide representation in municipal courts pursuant to a flat fee contract with no additional payment for other essential services such as investigators or paralegals. Each attorney was handling approximately 1000 cases annually, and were alleged to have failed to meet with clients and rarely investigate.
    On August 14, 2013, the Department of Justice filed a Statement of Interest in the case, making clear that if the plaintiffs’ claims were found to be meritorious, such a system was in fact a violation of the Sixth Amendment, and the court should implement workload standards and appoint an independent monitor to oversee the situation.
    On December 4, 2013, United States District Court Judge Robert Lasnik issued a decision finding that “the public defense system in Mount Vernon and Burlington has systemic flaws that deprive  indigent criminal defendants of their Sixth Amendment right to the assistance of counsel,” and appointed an independent monitor to oversee system reform.
    For more on the Wilbur case, see NACDL’s Statements of Interest page, the ACLU of Washington’s page on the case, and the full decision.
  •  Kuren v. Luzerne County. Lawsuit filed by ACLU of Pennsylvania on April 10, 2012, alleging that Luzerne County’s failure to adequately fund the Office of the Public Defender (OPD), despite repeated requests for additional funding and implementation of reasonable cost-cutting measures, has led to a system in which OPD is unable to fulfill its constitutional duty to provide adequate representation for indigent criminal defendants. In April 2013, Chief Public Defender Al Flora (then the plaintiff in the case) was replaced, leading the lawsuit to be dismissed in October 2013 – Judge Augello of the Luzerne County Court of Common pleas held that there was no one who had standing to sue the county since Flora was gone. The ACLU appealed, arguing that the public defender clients had the right to sue to protect their rights. In October 2014, the Pennsylvania Commonwealth Court affirmed the lower court’s ruling dismissing the lawsuit. However, in June 2015 the Pennsylvania Supreme Court agreed to hear the case on the question of whether or not public defender clients are entitled to sue. The Department of Justice filed an amicus curiae brief in the case on September 10, 2015, urging the court to allow the suit to go forward, and indicating that pervasive structural limitations such as lack of resources, high workloads and understaffing violates the Sixth Amendment. NACDL and the Pennsylvania Association of Criminal Defense Lawyers filed a joint amicus curiae brief as well. Oral argument before the PA Supreme Court took place on April 6, 2016.
    On September 28, 2016, the Pennsylvania Supreme Court issued a decision in Kuren v. Luzerne County, a class action lawsuit brought on behalf of indigent criminal defendants in Luzerne County PA.  The Court, in a case of first impression, was called to address (1) whether Plaintiff-Appellants stated a claim for constructive denial of counsel and (2) whether a claim of mandamus to compel funding could be brought. The Court’s holding recognized a cause of action for indigent defendants to seek prospective relief when insufficient county funding of public defense services leads to “widespread, systematic and constructive denial of counsel,” rather than relying on post-conviction remedies. (Opinion at 46.) In light of this newly recognized cause of action, the Court also held that Plaintiff-Appellants cannot pursue a writ of mandamus to compel the county board to provide additional funding, since mandamus requires that there be no other adequate legal remedy. The Court reasoned that if Plaintiff-Appellants “ultimately can prove that they are entitled to injunctive relief,” pursuant to the cause of action recognized in the holding addressing the first question, “the remedy afforded will be the same as if a court issued a writ of mandamus: increased funding.” (Opinion at 60.)
    The Court undertook substantial analysis of U.S. Supreme Court precedents as well as decisions from state and federal courts in Georgia, Michigan, and New York addressing claims of constructive denial of counsel in coming to its decision. The Court recognized that requiring individual defendants to address claims of ineffective assistance only in post-conviction proceedings ignores the reality that harms can occur throughout the judicial process – such as prolonged pretrial detention, unfiled motions, and lack of investigation – and that those harms may not directly impact the outcome of a case:
    • The right to counsel is the lifeblood of our system of criminal justice, and nothing in our legal tradition or precedents requires a person seeking to vindicate that right to wait until he or she has been convicted and sentenced. To so hold would undermine the essentiality of the right during the pretrial process. It would render irrelevant all deprivations of the right at the earliest stages of a criminal process so long as they do not clearly affect the substantive outcome of a trial. If the right to counsel is to mean what the Supreme Court has consistently said it means, this view cannot prevail. (Opinion at 53.)
    DOJ and NACDL amicus briefs were cited in the court’s decision. The case has been remanded to the trial court for further proceedings on the lawsuit.
    For more on the Luzerne case, see NACDL’s Statements of Interest page and the ACLU of PA’s page on the case.
  •  N.P. v. State of Georgia. Lawsuit filed by the Southern Center for Human Rights on January 7, 2014. The lawsuit alleges that juveniles in the Cordele Judicial Circuit are being denied their right to counsel either outright or de facto in that the system fails to appoint attorneys who are able to advocate effectively and who have appropriate structural support. On March 13, 2015, the Department of Justice filed a Statement of Interest in the case stating that the allegations, if true, show that juveniles in the Cordele Judicial Circuit were indeed being deprived of their rights under the Sixth Amendment. The DOJ went on to expound upon how these protections are especially essential to juveniles, who are incapable of navigating the criminal justice system without a skilled advocate with specialized training in juvenile defense.  The Department furthermore went on to say that children should never be allowed to waive counsel without first being appointed an attorney who can explain the consequences of that waiver, since “[a] juvenile’s waiver of counsel cannot be knowing, intelligent, and voluntary without first consulting counsel.”
    On April 22, 2015, the Superior Court of Fulton County, Georgia signed a consent decree implementing the following reforms: (i) requiring juveniles to be represented by a lawyers who specializes in juvenile law and childhood and adolescent development; (ii) requiring juveniles who wish to waive counsel to first speak with a public defender from the juvenile division to discuss the role of counsel and benefits of representation; (iii) require all arrested persons, both adult and juvenile, the opportunity to consult with a lawyer within three business days; (iv) add additional public defenders and investigators to the Cordele Circuit Public Defender Office; and (v) training requirements for public defenders.
    For more information on the N.P.v. Georgia case, see NACDL’s Statements of Interest page, the Southern Center for Human Rights press release about the filing, and the Department of Justice press release about the consent decree.
  •  Tucker v. Idaho. Lawsuit filed by the ACLU of Idaho in partnership with ACLU National’s Criminal Law Reform Project on June 17, 2015. The lawsuit alleges that Idahofails to provide adequate resources, training, and oversight for public defenders, thus neglecting its responsibility to ensure adequate representation for people who cannot afford attorneys.
    On May 12, 2016, the DOJ filed an amicus curiae brief in the case, clarifying the distinction between “filing a civil suit prior to conviction based on a state-wide constructive denial of counsel under Gideon v. Wainwright, and a civil suit filed after conviction based on ineffective counsel in a particular instance under Strickland v. Washington.” The brief clearly articulates the position that, “the availability of pre-conviction civil actions for systemic denials of counsel, whether actual or constructive, is critical to protecting the fundamental right that Gideon recognized.”
    For more information on the Tucker v. Idaho case, see NACDL’s Statements of Interest page and the ACLU’s page on the case.
  •  Phillips v. State of California (Fresno Public Defense). Lawsuit filed by the ACLU of Northern California in partnership with ACLU National’s Criminal Law Reform Project on July 14, 2015. The lawsuit claims that the Fresno County Public Defender’s Office gives inadequate defense counsel to indigent defendants because of heavy caseloads and a shortage of lawyers, investigators and office staff. It alleges that Fresno County and the state of California have insufficiently funded the Fresno County Public Defender’s Office and failed to monitor the department’s efforts.  The suit claims that the state and county violated indigent defendants’ right to due process, Sixth Amendment right to a speedy trial, and Fourteenth Amendment right of equal protection under the U.S. Constitution. The suit also says the county and state are violating the California Constitution and California penal code. The suit seeks to make the state and Fresno County comply with state and federal law and attorney fees for costs of suit. The state sought to dismiss the case, but the motion was denied on April 27, 2016.
    For more on the Phillips v. California case, see the ACLU’s page on the case and the ACLU of Northern California’s page.
  • Joseph Allen, et al. v. John Bel Edwards, et al. (Louisiana). Class action lawsuit filed by the Southern Poverty Law Center and allies on February 6, 2017 in the 19th Judicial District Court (East Baton Rouge) of Louisiana, against Gov. John Bel Edwards, the Louisiana Public Defender Board, and Public Defender Jay Dixon. The suit alleges that the State of Louisiana fails to maintain an effective statewide public defender system, thereby denying the poor access to “effective and meaningful attorney representation.” The complaint is supported by numerous documents detailing Louisiana’s broken system as well as the stories of thirteen individuals who have been appointed attorneys who are not providing constitutionally adequate representation.  The complaint cites a lack of uniform and adequate funding, excessive caseloads, little to no supervision or training, lack of independence, and conflicts of interest as contributing factors to the creation of a constitutionally inadequate system that also has a disproportionate impact on African Americans. The complaint requests a declaration that indigent criminal defendants in Louisiana are being denied their right to counsel and the equal protection of the law, an “injunction prohibiting Defendants from maintaining a public defense system where the traditional markers of effective representation are absent or significantly compromised,” and the appointment of a monitor to oversee system reform.
    For more on the case, see the Southern Poverty Law Center’s story about the case and the Lawyer’s Committee for Civil Rights page about the case. For NACDL’s work on Louisiana, see
  • Shondel Church, et al. v. State of Missouri, et al. Lawsuit filed by ACLU, ACLU of Missouri, and allies in the Cole County Circuit Court challenging the state of Missouri’s failure to meet its constitutional obligation to provide adequate legal counsel for defendants who are unable to pay for an attorney. Plaintiffs blame insufficient funding – Missouri ranks 49th out of 50 states in per capita indigent defense funding – for a system of “overstretched and under-resourced” defenders who are “forced to devote fewer than the minimum hours recommended by the ABA in more than 97 percent of their cases.”  These attorneys have no time to investigate cases and are also inadequately supervised and trained. Additionally, the system is plagued by unnecessary delays and pretrial detention, which leads to hasty and uncounseled guilty pleas from those who accept a plea simply to get out of jail. Plaintiffs ask for a judgment declaring Missouri’s public defense system unconstitutional, and an order for the State to take whatever means necessary to remedy the problems.
    For more information, see the ACLU’s page on the case.

Languishing in Jail without Charges or Representation

  •  Burks, et al. v. Scott County, Mississippi.  Lawsuit filed by the ACLU, the ACLU of Mississippi, and the Roderick and Solange MacArthur Justice Center on September 23, 2016. The lawsuit challenges the Scott County Jail’s practice of holding criminal defendants in jail for as long as a year without indicting them or appointing counsel, in violation of the Sixth and Fourteenth Amendments’ rights to counsel, to a speedy trial, and to a fair bail hearing. The lawsuit seeks to compel the county to set reasonable limits on the amount of time someone can remain in jail without a lawyer and without charges.
    For more on the case, see the ACLU’s page on the case, the MacArthur Justice Center’s page on the case, and the University of Michigan Law School’s Civil Rights Clearinghouse page on the case.
  •  Yarls v. Bunton (Orleans Parish, LA).  Lawsuit filed by the ACLU and the ACLU of Louisiana on January 14, 2016 against Orleans Parish Chief District Defender Derwyn Bunton and Louisiana State Public Defender James Dixon. Orleans Parish PD instituted a restriction of services (ROS) protocol due to lack of resources, excessive workloads (hundreds of felonies per year), and insufficient funds for investigation, research, etc. As a result, the PD office stopped taking cases and defendants were placed on a waitlist, with many (over 150 defendants) languishing in jail for months. This case was dismissed by Judge James J. Brady on January 31, 2017 on comity and federalism grounds. 
    For more on the case, see the Louisiana ACLU’s press release and linked documents and the University of Michigan Law School’s Civil Rights Clearinghouse page on the case.

Bail Issues: Bond Schedules are Unconstitutional

  •  Varden v. City of Clanton. Lawsuit filed by Equal Justice Under Law on January 15, 2015. The lawsuit challenges the City of Clanton, AL municipal court’s practice of setting bonds for municipal offenses based solely on offense based bail/bond schedules without making individualized determinations based on risk of flight, ability to pay bond or individual characteristics of the defendant.  
    On February 13, 2015, the Department of Justice filed a Statement of Interest in the case stating that if such a system is in fact in place, it is unconstitutional:  “It is the position of the United States that … any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.”
    In April 2015, the defendants agreed to a modified bail schedule and to hold a hearing within 48 hours for those unable to pay their bail. The lawsuit was dismissed without prejudice on September 14, 2015.
    For more on the Varden case, see NACDL’s Statements of Interest page, the University of Michigan Law School’s Civil Rights Clearinghouse page on the case, and Equal Justice Under Law
  •  Pierce v. City of Velda City. Class action lawsuit filed by Equal Justice Under Law and the ArchCity Defenders on April 2, 2015. The lawsuit challenged Velda City, Missouri municipal court’s practice of requiring cash or surety bonds in set amounts for municipal violations, without regard to the individual’s circumstances or ability to pay.
    On June 3, 2015, a settlement order was issued stating that the resulting difference in treatment between those who can afford to pay and those who cannot is a violation of the Fourteenth Amendment’s Equal Protection Clause, noting that “[i]f the government generally offers prompt release from custody after arrest upon posting a bond pursuant to a schedule, it cannot deny prompt release from custody to a person because the person is financially incapable of posting such a bond.” Pursuant to the settlement order, Velda City will no longer use secured money bail for municipal court offenses, instead releasing accused people on written promises to appear or unsecured money bonds. In the event of a failure to appear, a procedure is outlined to set a new court date without the need to re-arrest the individual in most cases. The full text of the order is available here
  •  Walker v. City of Calhoun. Lawsuit filed by Equal Justice Under Law and the Southern Center for Human Rights on September 8, 2015. Maurice walker, a 54 year old mentally ill man, was arrested for being a pedestrian under the influence of alcohol and was kept in jail for 6 nights because he was too poor to post bail that was set pursuant to a bond schedule that is used for all misdemeanors, traffic offenses, and ordinance violations. Mr. Walker has a serious mental health disability, lives with his sister and collects $530/month in SSI (his only source of income). He was told at the time of arrest and incarceration that he must post a $160 cash bond, with no consideration of indigency or individual characteristics. During his 6 days in jail he was denied his medication and was confined for 23 hours/day.
    On August 18, 2016 the Department of Justice filed an amicus curiae brief on behalf of the plaintiffs, stating that a bail scheme that mandates the fixed amounts of bail to obtain pretrial release, without meaningful consideration of the individuals indigence and alternatives that would serve the City’s interests, violates the 14th Amendment. The amicus brief included many of the same arguments as the Statement of Interest in the Varden case.
    For more information on the Walker v. Calhoun case, see NACDL’s Statements of Interest page and the University of Michigan Law School’s Civil Rights Clearinghouse page on the case.

Exorbitant Fees and Fines

  •  DOJ-Civil Rights Division- Dear Colleague Letter: On March 14, 2016 the DOJ Civil Rights Division sent out a letter to state and local judges regarding the unconstitutional practice of assessing fees and fines, mainly in cases involving individuals accused of misdemeanors, quasi-criminal ordinance violations, or civil infractions, without taking into consideration the defendant’s ability to pay. The DOJ acknowledged the harm that these defendants suffer as a result of these insurmountably high fees:  escalating debt, unnecessary incarceration for nonpayment despite no threat of danger to the community, loss of jobs, and becoming “trapped in cycles of poverty that can be nearly impossible to escape.” The DOJ also raised concerns that such practices are intended to generate revenue rather than to further public safety, calling into question the courts’ impartiality. Accordingly, the DOJ offered the following set of basic constitutional principles for enforcement of fines and fees in a way that does not offend guarantees of due process and equal protection.
    1. Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency determination and establishing that the failure to pay was willful;
    2. Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees;
    3. Courts must not condition access to a judicial hearing on the prepayment of fines or fees;
    4. Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees;
    5. Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections;
    6. Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release; and
    7. Courts must safeguard against unconstitutional practices by court staff and private contractors.

The DOJ also reminded courts that engaging in practices that violate these principles may also violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (if the court receives federal funds), when they unnecessarily impose disparate harm on the basis of race or national origin.
To read the entire Dear Colleague letter, click here.

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