The Champion

November 2016 , Page 05 

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From the President: A Civil Rights Battle for Our Times

By Barry J. Pollack

Read more From the President columns.

Gideon’sclear command to state courts would be a dead letter if states — or the counties that comprise them — need only go through the motions. The Court’s eloquent descriptions in Johnson [v. Zerbst] and Gideon of the essential nature of the right to a lawyer would ring hollow, and would amount to empty rhetoric, if appointment of counsel for indigent defendants is but a mere formality. It is the defense itself, not the lawyers as such, that animates Gideon’smandate. If the latter cannot provide the former, the promise of the Sixth Amendment is broken.

— Kuren v. Luzerne County of the Commonwealth of Pennsylvania 

Located in northeast Pennsylvania, Luzerne County has about 320,000 residents, about 43,000 of whom live in the city of Wilkes-Barre. About 91 percent of the population of Luzerne County is white; less than 4 percent of the population is African American. Many of us have never heard of Luzerne County. It hardly seems like a place that would serve as a new frontier in the battle for civil rights. But it is.

One of the great civil rights battles of our time is to ensure that people who end up in the criminal justice system, often poor and often of color, are adequately represented. They must contend with a system that provides unprecedented charging discretion to prosecutors; metes out harsh, unforgiving, and often draconian sentences; and saddles those convicted of even minor crimes with collateral consequences that leave a lasting impediment to a person’s ability to pursue education, employment, and government benefits.

The population of Luzerne County peaked in the 1930s and has been declining ever since. Like so many areas of our country, in a time of declining tax bases, government resources are stretched thin. And, like in so many areas of our country, one way in which Luzerne County has reacted to its lack of resources is to short change funding for the public defense of those accused of a crime who cannot afford to retain counsel.

Never in our history have more defendants been represented by court-appointed counsel. Indeed, in more than 80 percent of all criminal cases, the defendant is represented by court-appointed counsel. While the demand for public defenders has never been higher, the resources devoted to public defense have never been stretched more thinly.

Reading about the horrific indigent defense crisis in Louisiana and aware of the history of overwhelmed, underresourced public defenders throughout the rural South, one might be tempted to think of the crisis in public defense as being a regional one, confined to the South. If true, this crisis would be troubling enough. Luzerne County illustrates, however, that it is not. The crisis is a national one, not a regional one.

In Luzerne County, caseloads for public defenders greatly exceed national standards. The public defender’s office has insufficient support staff, inadequate information technology, and lacks adequately trained appellate attorneys. For years the county has refused requests for funding to permit additional hiring, and, at times, the public defender’s office has not even had adequate office space to allow its lawyers to hold confidential meetings with their clients.

Historically, the problem of the failure of the state to provide adequately trained, adequately resourced, and effective assistance of counsel has been one that has been addressed retrospectively on a case-by-case basis. Don’t have adequate counsel? Go to trial, get convicted, go to jail, appeal, collaterally attack your conviction, and, ultimately, if you are lucky, you will get your conviction reversed and start the process all over again.

The civil rights movement of the 1950s and ’60s also fought injustice one person at a time. Don’t like the fact that your local lunch counter is segregated? Sit in the whites-only seat, maybe get physically attacked, get hauled off to jail, come back with 10 of your friends, and start the process all over again. Individual cases of injustice must be fought individually. But when the power of the story of individual injustices begins to seep into the nation’s consciousness, there is an opportunity for systemic reform. Whether it is judicial (Brown v. Board of Education) or legislative (the Civil Rights Act or the Voting Rights Act), it is a systemic course correction spurred on by individual injustice that provides the best hope of bringing about true change.

Are we at such a moment in the current civil rights battle for public defense? Is Luzerne County a catalyst for systemic change, not only in Pennsylvania, but across the country? It remains to be seen, but the answer to both questions could be yes.

On Sept. 28, 2016, after years of litigation in Kuren v. Luzerne County of the Commonwealth of Pennsylvania, the Supreme Court of Pennsylvania reached the question of whether the remedy for a state’s systemic failure to provide adequate resources for public defense was confined to a retrospective case-by-case litigation of ineffective assistance of counsel claims or whether there was a cause of action that would allow for the issue to be addressed prospectively, forcing the state to provide adequate resources for public defense. The claim advanced was that, as presently funded, the Office of the Public Defender of Luzerne County is incapable of providing constitutionally adequate representation to the indigent defendants of Luzerne County. The court put it this way:

The question that we confront today is whether a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office. … Appellants make no individual claims of ineffective assistance of counsel. Rather, Appellants challenge the system itself.

It is not surprising that the court received an amicus brief from the National Association of Criminal Defense Lawyers and its Pennsylvania affiliate, the Pennsylvania Association of Criminal Defense Lawyers, urging the court to hold that there is such a cause of action. The court also heard the same position advanced by the Innocence Network, Innocence Project of Pennsylvania, and the American Bar Association. Perhaps more surprising is the fact the court received an amicus brief from the United States Department of Justice urging the same result.

The court had no difficulty reaching that result:

We now hold that there is a cognizable cause of action whereby a class of indigent defendants may seek relief for a widespread, systemic and constructive denial of counsel when the alleged deficiencies in funding and resources provided by the county deny indigent defendants their constitutional right to counsel. The consequences of holding otherwise would be untenable, and would be fundamentally irreconcilable with the United States Supreme Court’s pronouncements on the role of the right to counsel in our system of justice.

The court’s opinion adopting the position supported by NACDL, PACDL, and the Department of Justice was not unprecedented. Courts in New York and Michigan, as well as the Eleventh Circuit, had previously reached similar conclusions.

But the decision in Kuren v. Luzerne County provides real hope that systemic reform can be achieved not only through litigation in counties throughout Pennsylvania, but also that Pennsylvania can provide precedent for similar litigation in other states. A turning point in the civil rights movement was when the Department of Justice, after years of shying away from blatant violations of the civil rights of African Americans across the South, finally transformed itself as a powerful advocate for change. When NACDL, the ABA, and the Department of Justice are all urging a court to a particular result, it will be difficult for that court to ignore the power of those combined voices.

Indigent defense in this country is a localized affair. We have thousands of different jurisdictions providing different levels of resources to public defense. There is no single decision of a single court that can alleviate the indigent defense crisis we are experiencing across the country. Bringing litigation that makes systemic challenges to inadequate funding of public defense state by state, county by county, will be time-consuming and expensive. But the prospect of prospective change, rather than the back-end litigation of individual ineffective assistance of counsel claims, presents the prospect of actually fixing public defense systems, rather than merely dealing with the aftermath of the tragic individual consequences of inadequate funding.

NACDL has been, and will continue to be, at the forefront of this crucial battle for civil rights in our generation. Maybe, just maybe, 50 years from now people will hear the words Luzerne County the way they now hear Stonewall, Greensboro, or Birmingham.

About the Author

Barry Pollack is Chair of the White Collar & Internal Investigations Practice at Miller & Chevalier. As a former certified public accountant, a substantial focus of his practice is representing defendants in complex financial matters. He is a Fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.

Barry J. Pollack
Miller & Chevalier
Washington, DC
202-626-5800
www.milchev.com
@millerchevalier
bpollack@milchev.com 

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