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Department of Justice Statements of Interest

The United States Department of Justice has taken an active role in promoting indigent defense through the issuance of Statements of Interest in several state cases. These statements contain powerful language that could be of use to indigent defenders arguing against similar practices in their own jurisdictions.

November 28, 2016: Kenny v. Wilson 

Kenny v. Wilson is a class action federal lawsuit filed in the U.S. District Court for South Carolina challenging as unconstitutionally vague two statutes, Disturbing Schools, S.C. Code Ann. § 16-17-420 and Disorderly Conduct, S.C. Code Ann. § 16-17-530. The plaintiffs in the case allege that the statutes provide insufficient notice to students about what conduct is prohibited and enable arbitrary and discriminatory enforcement by police. Plaintiffs further allege that these statutes cause common youthful conduct to be criminalized and punished disproportionately to its severity, and that the enforcement of these statutes is racially disparate and contributes to the “school-to-prison pipeline.” Plaintiffs argue that these statutes have been used to criminalize minor misbehavior and that more than 9,500 students ages 16 and younger have been referred to the Department of Juvenile Justice (DJJ) since 2010 for violations – a number that would certainly climb if 17 and 18 year olds, who are prosecuted as adults, were included in the analysis. In support of their allegations of racial disparity, plaintiffs present statistics alleging that “black students were 3.93 times more likely than their white peers to be referred to [DJJ] for Disturbing Schools in the 2014-2015 school year across the state, with even higher disparities evidenced in some counties” (DOJ Brief at 13).

The Department of Justice Civil Rights Division, while taking no position on the merits of the case, filed a statement of interest indicating that if plaintiffs’ claims are true, they have properly stated a claim under the Fourteenth Amendment Due Process Clause. The Department stated that a statute is unconstitutionally vague if it fails to give notice of proscribed conduct or is “so standardless that it enables arbitrary and discriminatory enforcement” (DOJ Brief at 10, quoting S.C. Med. Ass’n v. Thompson, 327 F. 3d 346, 354 (4th Cir. 2003)). The second prong – the potential for arbitrary and discriminatory enforcement – was of paramount concern to the Department in its statement, which noted that “significant racial disparities in the enforcement of a criminal statute may indicate that the statute is unconstitutionally vague” (DOJ Brief at 2). In its Brief, the DOJ also re-asserted its position that “school-based law enforcement officers … should take law enforcement actions, such as arresting students, only for serious criminal conduct or when necessary to protect students and staff from a threat of immediate harm” (DOJ Brief at 6).

The Department of Justice’s news release about the statement of interest is available here.

November 7, 2016: Stinnie et al. v. Holcomb 

Stinnie v. Holcomb is a class action lawsuit filed in the U.S. District Court for the Western District of Virginia challenging the constitutionality of Virginia’s alleged practice of automatically suspending driver’s licenses for failure to pay court debts. The plaintiffs allege that Virginia affords no opportunity for individuals whose licenses are suspended for nonpayment to be heard as to the reasons for nonpayment, and that the license remains suspended until the fees are paid or a payment plan is arranged and the person pays a license reinstatement fee. The Department of Justice statement of interest explains that a driver’s license is a protected interest that cannot be revoked without due process and that the automatic suspension of a license for failure to pay court debts without any inquiry into the individual’s ability to pay is a violation of the Fourteenth Amendment. The result of such an action is that indigent individuals are effectively punished for their poverty, since defendants who can afford to pay do not face license suspensions.

The Department discussed the substantial harms that arise from the loss of a driver’s license, including impediments to employment, education, and family care. Additionally, in 41 states and the District of Columbia, a first offense of driving with a suspended license can result in jail time, putting individuals who “have no other option but to drive unlawfully in order to work, care for their children, or attend crucial medical appointments” at constant risk of incarceration. (Statement at 18). The Department also questioned the efficacy of the Commonwealth’s practice of suspending licenses for nonpayment of fees in an attempt to compel compliance with court-ordered payments, citing several news articles and studies that show how individuals whose licenses are suspended are likely to lose their jobs, trapping them in a cycle of poverty. Instead, the Department highlighted other options available to the Commonwealth to accomplish its interest in punishing crimes and traffic violations committed by indigent persons, such as community service, completion of classes, or reducing fines to a level appropriate to the person’s means.

The Department of Justice’s news release about the statement of interest is available here.

Amicus Brief: August 18, 2016: Maurice Walker v. City of Calhoun, Georgia 

Plaintiff alleges that the City of Calhoun, GA, employs an unconstitutional bail practice that imprisons indigent defendants because of their inability to pay fixed bail amounts for misdemeanors, traffic offenses, and ordinance violations without taking into consideration the individuals’ ability to pay and alternative methods of assuring appearance at trial. In this particular case, Maurice Walker, a 54 year old mentally ill defendant receiving SSI disability benefits was arrested for the misdemeanor offense of being a pedestrian under the influence. A preset bail of $160 was set for his offense and he was incarcerated for six days in solitary confinement without medication until his counsel could secure his release on personal recognizance. In September 2015, the plaintiff Walker challenged the policy in a lawsuit filed in the U.S. District Court for the Northern District of Georgia. In January 2016, the district court found the policy unconstitutional and entered an injunction requiring the city to implement constitutional procedures. The city appealed that ruling.

The Department of Justice, while taking no position on the merits of the allegations in the case, issued an amicus brief and declared that “a bail scheme that mandates payment of fixed amounts to obtain pretrial release, without meaningful consideration of an individual’s indigence and alternatives that would serve the City’s interests, violates the Fourteenth Amendment.” In addition, the brief discusses the problems that result from unnecessary pretrial detention, such as jail overcrowding and increased burdens on taxpayers. The brief concludes that bail practices like Calhoun’s are not only unconstitutional “but also conflict with sound public policy considerations.”

Amicus Brief: May 12, 2016: Tucker, et al., v. Idaho. et al. 

The Department of Justice filed an amicus curiae, or friend-of-the-court, brief in this Idaho right to counsel case. According to the plaintiffs in Tucker, the state continuously fails to provide adequate resources to support effective defense services for poor defendants. The class action lawsuit therefore alleges that the systemic failings in Idaho’s public defender system are leading to the constructive denial of counsel for indigent criminal defendants in violation of the Sixth and Fourteenth Amendments.

In its amicus brief, the DOJ highlights the importance of prospective civil claims for criminal defendants who cannot afford an attorney in order to prevent violations of their constitutional right to counsel under the Sixth Amendment. In its news release about the brief, the department clarifies 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.” (DOJ Brief at 2.)

October 2, 2015: S.R. & L.G. v. Kenton County, et al. 

The plaintiffs in the case are one eight-year-old third grader (S.R.) and a nine-year-old fourth grader (L.G.). The elementary school children allege that a school resource officer (SRO) violated their rights under the Fourth and 14th Amendment and Title II of the Americans with Disabilities Act (ADA) when “the SRO handcuffed them in school, behind their backs, above their elbows, and at their biceps, after the children exhibited conduct arising out of their disabilities.”

The Department of Justice, while taking no position on the merits of the case, explained “the requirements to protect the rights of children, particularly children with disabilities, in their interactions with SROs,” and declared that “if SROs do not observe appropriate limits on their role and responsibility, they risk criminaliz[ing] school-related misbehavior and risk lasting and severe consequences for children, particularly children with disabilities.” The DOJ confirms that “the ADA applies to SROs’ interactions with children with disabilities and that this statute requires SROs to make reasonable modifications in their procedures when necessary, and requires law enforcement agencies to change policies that discriminate against children with disabilities.”

Amicus Brief: September 10, 2015: Kuren v. Luzerne Cnty. 

The DOJ filed an amicus curiae, or friend-of-the-court, brief in a putative class action suit currently before the Supreme Court of Pennsylvania concerning the inadequate funding of the Luzerne County public defender's office. In its brief, the thrust of the argument made by United States, through the DOJ amicus brief, is that a civil claim for constructive denial of counsel under the Sixth Amendment is cognizable:

The Sixth Amendment right to counsel requires more than the mere appointment of a member of the bar. The right of indigent criminal defendants to be provided an attorney may be violated by the government's actual denial of counsel, or by a constructive denial of counsel. A civil claim for systemic prospective relief based on constructive denial of counsel is viable: (1) when, on a system-wide basis, the traditional markers of representation – such as timely and confidential consultation with clients, appropriate investigation, and meaningful adversarial testing of the prosecution's case – are absent or significantly compromised; and (2) when substantial structural limitations – such as a severe lack of resources, unreasonably high workloads, or critical understaffing of public defender offices – cause that absence or limitation on representation. (DOJ Brief at 11.)

NACDL’s full news release about the DOJ’s filing of the case is available here.

August 6, 2015: Bell v. City of Boise, et al. 

Plaintiffs in the case challenge the enforcement of Boise Municipal Code ordinances that prohibit camping and sleeping in public places. Plaintiffs argue that some homeless people are unable to stay in shelters either due to lack of available space or inability to meet required conditions, and thus the municipal ordinances amount to “criminalizing homelessness itself, in violation of the Eighth Amendment.” Without taking a position on the disputed claims, the Department of Justice intervened to instruct the court that the appropriate framework to decide the case is Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006). The DOJ explained that if it is impossible for homeless individuals to stay in shelters, and thus impossible to comply with the ordinances, then enforcement of the ordinances is a violation of the Eighth Amendment.

The Statement of Interest also discussed public policy concerns of criminalizing acts that are unavoidable for homeless individuals. Criminal prosecution of these offenses “forces individuals into the criminal justice system and creates additional obstacles to overcoming homelessness.” Those criminal records can then interfere with ability to secure employment and housing. Criminalization of these activities also unnecessarily strains an already overburdened justice system.

NACDL’s news release about the statement is available here.

March 13, 2015: N.P., et al., v. State of Georgia, et al. 

Plaintiffs in the case allege 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. The Department of Justice, while taking no position on the merits of the allegations in the case, declared that “[i]f the allegations in the case are ultimately proven true, then Plaintiffs are being systematically deprived of their constitutional right to counsel in the Cordele Judicial Circuit.”

DOJ made clear that juveniles in particular are “entitled to procedural safeguards that acknowledge their vulnerability,” not just in the sentencing phase as made clear by Miller v. Alabama, but throughout a juvenile’s interaction with the justice system. DOJ emphasized that the unique situation of juveniles in the justice system requires even more from attorneys to provide effective assistance, since special training, experience, and skill is required for an attorney to be an effective advocate when the client is a child. The Department stated that “[e]very child who faces loss of liberty must be represented from the time of arrest through the disposition of their case” and 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.”  

February 13, 2015: Varden v. City of Clanton 

Plaintiffs in the case alleged that the City of Clanton sets bonds for municipal court offenses based solely on an offense-based bond schedule, without any individualized determination of risk of flight or ability to pay that bond. The Department of Justice’s Statement of Interest made clear that if such a system is in fact in place, it is unconstitutional, stating, “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.” Asserting that the justice system should not work differently for the poor than it does for the rich, the Department quoted powerful language from cases in the 1970’s:

  • “To imprison an indigent when in the same circumstances an individual of financial means would remain free constitutes a denial of equal protection of the laws.” Barnett v. Hopper, 548 F.2d 550, 554 (5th Cir. 1977)
  • “Imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978)

In addition to the Equal Protection concerns of a bail system that is based solely on money, the Statement issued by the Department of Justice discusses public policy concerns that are implicated by a system in which release of a defendant is determined solely by ability to pay. Such a system causes unnecessary detention of indigent defendants who cannot afford to pay, while allowing for the release of some high-risk defendants who have the resources to pay bond but “should more appropriately be detained without bail.”  The detention of those too poor to afford to pay bail leads to local jails being clogged with pretrial detainees, all of whom are presumed innocent and many of whom are charged with nonviolent crimes.  Pretrial detention strongly impacts those individuals who are detained as well as their families, causing harm to the community when individuals lose jobs and families have to turn to government assistance.  Furthermore, the incarceration of an individual in the pretrial stage inhibits participation in the defense process and leads to worse outcomes for those individuals as compared to those who are able to gain release. For these reasons, the Department of Justice “urges that pretrial detention be used only when necessary, as determined by an appropriate individualized determination,” and that a fixed-sum bail system such as the one described by the Plaintiff in her complaint should not be allowed to stand.

NACDL’s news release about the statement is available here.

September 25, 2014: Kimberly Hurrell-Harring, et al. v. The State of New York, et al.  
Plaintiffs in the case alleged that they were constructively denied their Sixth Amendment right to counsel in that court-appointed attorneys were provided in name only due to inadequate funding and resources available for attorneys to provide a constitutionally adequate defense. The Department of Justice’s Statement of Interest filed in the case made 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.

NACDL’s news release about the statement is available here.

August 14, 2013: Wilbur v. City of Mount Vernon, et al. 

Plaintiffs in the case alleged that the Washington cities of Mount Vernon and Burlington were systematically denying defendants counsel through their systems of jointly contracting with two attorneys for a flat fee to complete all indigent representation in municipal courts in those towns. The flat annual fee that each was paid had to cover all expenses of representation, including investigation and clerical support, which effectively led to a system where attorneys actually made more money per case by doing less work and investing fewer resources. The attorneys each handled about 1,000 cases per year, and also had private practices. The lack of resources and heavy caseloads, according to plaintiffs, resulted in a system of constructive denial of counsel, as the attorneys failed to communicate with clients and investigate cases.

The Department of Justice’s Statement of Interest in the case made clear that if the plaintiffs’ claims were found to be meritorious, that 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.

NACDL’s news release about the statement is available here.

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