News Release

Nation's Criminal Defense Bar Hails Department of Justice Filing in Indigent ‘Right to Counsel' Case Before Pennsylvania's Supreme Court

Washington, DC (Sept. 17, 2015) – Late last week, the U.S. Department of Justice (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.)

National Association of Criminal Defense Lawyers (NACDL) President E.G. "Gerry" Morris said: "This important filing adds to a line of filings across the nation suggesting a Department of Justice that is ever more focused on the reality and consequences of the tragic overburdening and under-resourcing of public defender offices across the nation. Though today we celebrate Constitution Day, we must be mindful, as reflected in this and numerous other cases, that the Sixth Amendment's promise of the ‘Right to Counsel' for all accused of a crime, regardless of one's ability to pay for an attorney, remains unfulfilled. NACDL and indeed all who are concerned with the vitality of the rights of the accused are heartened by the increased frequency and force with which the Department of Justice is weighing in on these matters. It makes a difference."

NACDL Executive Director Norman L. Reimer said: "The DOJ echoes what NACDL has long maintained: An overburdened, under-resourced attorney is tantamount to no counsel at all. The Sixth Amendment right to counsel is a real and vital right. It is not a fiction or a sham. It is a core value in the Bill of Rights that honors the dignity of the individual. It is time to stop paying lip service to it, and start honoring it in every case and in every criminal court in the nation."

NACDL, together with its Pennsylvania affiliate PACDL, also filed an amicus curiae brief in this matter in support of appellants in this case. In that brief, NACDL and PACDL make the case that "appellants have stated a claim for constructive denial of counsel because the allegations of the amended complaint demonstrate that there are systemic deficiencies in the Luzerne County Office of the Public Defender that create imminent and unacceptable risk that appellants' right to counsel will be violated in ways that cannot be cured by post-conviction review." The brief also points out that the problems confronting indigent defense services are systemic and extend throughout the Commonwealth and the nation.  

The Brief for the United States as Amicus Curiae in Support of Appellants is available here. And the Brief of Amicus Curiae NACDL and PACDL in Support of Appellants is available here.

To learn more about NACDL's extensive work in the area of indigent defense, please visit

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Ivan J. Dominguez, NACDL Director of Public Affairs & Communications, (202) 465-7662 or for more information.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.