News Release

DOJ Acts Boldly In Case to Expose Indigent Defense Deficiencies

Washington, DC (September 25, 2014) – With the nation's indigent defense system mired in a persistent crisis of underfunding as a result of the failure of the states to enforce the Supreme Court's landmark Sixth Amendment right to counsel decision in Gideon v. Wainwright (1963), the Department of Justice has acted boldly in a case that seeks to expose the resulting deficiencies. In the case of Hurrell-Harring et al. v. New York, a class action brought by the New York Civil Liberties Union challenging systemic deficiencies in the indigent defense services in several New York counties, the Department of Justice, on behalf of the federal government, today filed a Statement of Interest in the pending litigation.

In its filing, the DOJ, while not taking a position on the merits of plaintiffs' claims in this particular case, declared that the right to counsel "is so fundamental to the operation of the criminal justice system that its diminishment erodes the principles of liberty and justice that underpin all of our civil rights in criminal proceedings." (See page 8.) The filing further makes the point "The United States has an interest in ensuring that all jurisdictions – federal, state, and local – are fulfilling their obligation under the Constitution to provide effective assistance of counsel to individuals facing criminal charges who cannot afford an attorney, as required by Gideon." (See page 2.)

NACDL President Theodore Simon said: "In a nation in which approximately 80% of accused persons in the United States must rely upon public defenders and court-appointed counsel to represent them, there is a lack of due process, pervasive injustice and no meaningful fulfillment of the right to counsel if the states fail to provide fully resourced and effective advocates. DOJ's filing emphatically and unassailably recognizes the basic truth that inadequately resourced counsel are tantamount to no counsel at all."

NACDL Executive Director Norman L. Reimer, who co-authored an amicus brief (joint amicus brief) in support of the New York cause of action several years ago added, “For the second time in two years, the DOJ has made its voice heard on one of the most critical issues facing the integrity of the American criminal justice system – the current crisis in indigent defense. NACDL has long supported greater DOJ involvement in ensuring state and local compliance with the Sixth Amendment right to counsel. This action makes it clear that the deprivation of that right is no longer tolerable in this nation. More importantly, it demonstrates that the DOJ will act boldly to vindicate that right."

In its filing, the DOJ weighed in on a variety of points, including:

  • "It is the position of the United States that constructive denial of counsel may occur in two, often linked circumstances:
    • When, on a systemic basis, lawyers for indigent defendants operate under substantial structural limitations, such as a severe lack of resources, unreasonably high workloads, or critical understaffing of public defender offices; and/or
    • When 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 on a system-wide basis" (See page 1.);
  • Further, the statement asserts that "under either or both of the [above] circumstances, a court may find that the appointment of counsel is superficial and, in effect, a form of non-representation that violates the Sixth Amendment." (See page 1.)
  • "It is a core guarantee of the Sixth Amendment that every criminal defendant, regardless of economic status, has the right to counsel when facing incarceration." (See page 8.)
  • "Substantial structural limitations force even otherwise competent and well-intentioned public defenders into a position where they are, in effect, a lawyer in name only." (See page 11.)

NACDL also endorses the expansion of 42 U.S.C. §14141 (Violent Crime Control and Law Enforcement Act of 1994), which provides federal authority to enforce the right to counsel in juvenile delinquency proceedings, beyond juvenile justice systems to include state compliance with constitutional safeguards in adult criminal cases.

Recent NACDL research reports in this area include:

  • Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts;
  • Three–Minute Justice: Haste and Waste in Florida's Misdemeanor Courts;
  • National Indigent Defense Reform: The Solution is Multifaceted (a joint report with the ABA);
  • Gideon at 50 Part I – Rationing Justice: The Underfunding of Assigned Counsel Systems;
  • Gideon at 50 Part II Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel;

These and other NACDL reports are available online at

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Please contact Norman L. Reimer, Executive Director, (202) 465-7623 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.