Office for Access to Justice Accomplishments

In the criminal justice system, public defender offices are underfunded and understaffed, often so severely that they cannot hope to provide their clients with effective representation. For some indigent defenders, annual caseloads can range from 500 to 900 felony cases and over 2,000 misdemeanors, at least five to six times the recommended ceilings set by the National Advisory Commission on Criminal Justice. In some instances, jurisdictions have reported case load assignments to be so high that defenders average just seven minutes per case. Understaffing leads to lack of attention to individual clients’ cases, which in turn can lead to grave injustice, including wrongful convictions and unjust imprisonment.  

A key priority of the Office for Access to Justice is working with national indigent-defense advocacy groups and public defenders from across the country to address the crisis in the provision of indigent legal defense. To date, ATJ’s accomplishments in this area include:

• Supporting Development of Quality Indigent Defense Systems

As part of its efforts toward protecting the constitutional guarantee to effective assistance of counsel, the Office for Access to Justice (ATJ), in partnership with the DOJ’s Civil Rights Division (CRT), has filed a series of Statements of Interest and amicus briefs:

Wilbur v. City of Mount Vernon: In 2013, ATJ and CRT filed a Statement of Interest in a class action lawsuit alleging that accused indigent defendants were systematically denied effective assistance of counsel. The Statement of Interest took no position on the merits of the case but requested that if the United States District Court found constitutional violations, it consider as part of its remedy workload controls for public defense providers and the appointment of an independent monitor to ensure compliance. On December 4, 2013, the district court found a systematic deprivation of the right to assistance of counsel and issued an injunction in favor of the plaintiffs that required the defendant cities to hire a part-time public defender supervisor tasked with monitoring and reporting on the delivery of indigent defense representation.

Hurrell-Harring v. State of New York: In 2014, ATJ and CRT filed a Statement of Interest to offer the Department’s views with respect to right to counsel. In this case, a class action pending before the Supreme Court of the State of New York, the plaintiffs alleged that, due to systemic failures in five New York counties, indigent criminal defendants had been constructively denied the right to counsel. The plaintiffs claimed that a lack of funding deprived public defenders of the time, resources, and ability to prepare cases or meaningfully represent their clients and amounted to the denial of counsel. In its Statement, the Department advised the court that under-resourcing public defense systems may force even otherwise competent and well-intentioned public defenders into a position where they are, in effect, a lawyer in name only. The case settled soon after the Department filed its Statement.

N.P. v. State of Georgia: In 2015, ATJ and CRT filed a Statement of Interest in Georgia state court addressing right to counsel concerns for juveniles. The class action asserted that the public defense system in the Cordele Judicial Circuit has been so underfunded and poorly staffed that juveniles are routinely denied their right to legal representation. Based on legal precedent, the Department identified procedural safeguards that must be provided to children who appear in court. The Statement addressed the issue of waiver of counsel specifically and argued that that if a child decides to waive the right to an attorney, courts must ensure that the waiver is knowing, intelligent, and voluntary by requiring consultation with counsel before the court accepts the waiver. The case settled less than a month after the Department filed its statement.

Kuren, et al. v. Luzerne County: In September 2015, ATJ and CRT filed an amicus brief with the Supreme Court of Pennsylvania in a class action lawsuit alleging that the public defense system in Luzerne County is so underfunded and poorly staffed that those accused of crimes are constructively denied their right to counsel under the Sixth Amendment. According to the plaintiffs, public defenders in Luzerne County are unable to engage in many of the basic functions of representation, including conferring with clients in a meaningful way prior to critical stages of their legal proceedings, reviewing client files, conducting discovery, engaging in motion practice, conducting factual investigations or devoting the time necessary to prepare for court.  In its brief, the Department asserts that, “the Sixth Amendment right to counsel requires more than the mere appointment of a member of the bar.” Further, the Statement also asserts that a civil action for prospective relief under the Sixth Amendment is viable when traditional markers of representation are systemically absent or compromised as a result of substantial structural limitations, “such as a severe lack of resources, unreasonably high workloads, or critical understaffing.”

After the passage of the Tribal Law and Order Act of 2010 and then the Violence Against Women Reauthorization Act of 2013, the provision of indigent defense services in tribal settings has been dramatically altered. ATJ provides expertise to Tribes, Tribal Public Defender Offices, and federal partners on the right to counsel and encourages the development of alternatives to incarceration based on traditional practices:

Special Domestic Violence Criminal Jurisdiction and Defendants’ Rights: In March 2013, President Obama signed into law the Violence Against Women Reauthorization Act, or "VAWA 2013". VAWA 2013 recognizes tribes' inherent power to exercise "special domestic violence criminal jurisdiction" (SDVCJ) over certain defendants, regardless of their Indian or non-Indian status, who commit acts of domestic violence or dating violence or violate certain protection orders in Indian Country. This new law generally took effect on March 7, 2015, but also authorized a voluntary "Pilot Project" to allow certain tribes to begin exercising SDVCJ sooner, if they could demonstrate to the Department that the rights of defendants are protected. The Office for Access to Justice was actively engaged in activities around the “Pilot Project” phase and provides defense-related expertise to the Department and interested Tribes.

Native American Traditional Justice Practices & Alternatives to Incarceration: ATJ and the Bureau of Indian Affairs’ Office for Tribal Justice Support (OTJS) co-sponsored an expert group meeting in April 2013 on the use of traditional Native American justice practices to respond to criminal and delinquent behavior. The one-day roundtable meeting brought together leaders and experts on the use of traditional justice practices to discuss the benefits and challenges of these programs and developed recommendations to the Federal Government on how to support these practices. Both offices participated in a listening session at a peacemaking gathering hosted by the Chickasaw Nation in April 2014. A report summarizing the expert group’s discussions and recommendations was disseminated to tribal criminal justice stakeholders in furtherance of the Tribal Law and Order Act’s mandate that both Departments help tribes develop alternatives to incarceration.

ATJ also supports the development of international guidelines and best practices on indigent defense. Through this activity, ATJ helps to ensure that U.S. best practices are shared on the global stage and international best practices are identified for potential transfer to the United States.

United Nations: ATJ staff served on the U.S. delegation to the United Nations Commission on Crime Prevention and Criminal Justice (UN Crime Commission) to assist with negotiating a resolution which supported the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems—the first international principles and guidelines on indigent defense. On December 20, 2012, the General Assembly adopted the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (A/RES/67/187) and the United States was one of 16 co-sponsors of the UN Crime Commission resolution that first adopted the document in April 2012. ATJ has continued to participate in activity to support the implementation of the principles and guidelines, including the follow-up international conference on criminal legal aid in Johannesburg, South Africa in June 2014, by participating in an expert working group on the development of a UN Model Law on Criminal Legal Aid, and by participating in the planning of the second international conference on the topic in Buenos Aires, Argentina in the fall of 2016.

• Assisting with the Creation and Development of Federal Resources to Support Indigent Defense Providers

ATJ works with the Department's Office of Justice Programs (OJP) to develop and support grant programs, training, and technical assistance for indigent defense providers:

BJA’s National Consortium on the Right to Counsel: ATJ assisted the Bureau of Justice Assistance in launching the new National Consortium on the Right to Counsel. Modeled after the successful Pretrial Justice Working Group, which BJA began funding in 2011, the Right to Counsel Consortium brings together representatives from all corners of the criminal justice system—prosecutors, judges, probation, police, defenders and policymakers—in support of more robust public defense services at the state and local level. After careful planning, the Consortium convened its inaugural meeting in November 2011 and featured remarks by ATJ staff.

BJA Solicitations: ATJ worked with the Bureau of Justice Assistance (BJA) to develop a $3.2 million grant program over two years to help jurisdictions implement one or more of the ABA Ten Principles of a Public Defense Delivery System. The purpose of the “Answering Gideon’s Call: Improving Indigent Defense Delivery Systems” grant initiative is to contribute to indigent defense practice and knowledge by implementing and testing approaches to providing quality indigent defense services using the Ten Principles. After receiving an impressive number of qualified applications, BJA awarded grants to four agencies in Texas, Delaware, Massachusetts, and Michigan in Fall, 2012. Each grantee is partnered with a research organization in order to track outcomes. In 2013, five new grants totaling $4.5 million were awarded for training and technical assistance to cover trial advocacy training, pretrial advocacy, a comprehensive national study of public defender services, and state reform work in Mississippi, Utah, and elsewhere.   

ATJ also worked with BJA in 2015 to develop a Smart Defense Initiative as part of BJA’s “Smart Suite” of criminal justice programs. The purpose of this program is to improve the quality of public defense delivery systems guided by the Ten Principles. BJA estimates that it will make up to five awards of up to $400,000 each for a 24-month project period, beginning on October 1, 2015.

Byrne/JAG Guidance: ATJ also worked with BJA to promote increased representation of the indigent defense community on the state and local advisory committees responsible for allocating DOJ’s Edward Byrne Memorial Justice Assistance Grant (JAG) Program formula grants. The JAG Program provides federal funding for states and localities to promote effective strategies across the criminal justice system. The JAG program solicitation now includes important new language encouraging state and local jurisdictions to bring all system stakeholders, including indigent defense providers, together in the strategic planning process. It also requires applicants to submit information describing their strategic planning process and identifying whether or not they are making a commitment to indigent defense in both their planning and funding decisions.  

With BJA and the National Criminal Justice Association, ATJ has also conducted a series of webinars to highlight the DOJ’s ongoing work to encourage jurisdictions to bring together all system stakeholders in criminal justice planning conversations, and to showcase strategies for integrating indigent defense and other functions into criminal justice resource planning.    

NIJ-Supported Research: In January 2011, ATJ and the National Institute of Justice’s International Center (NIJ) co-sponsored an Expert Working Group on International Perspectives on Indigent Defense. The workshop identified domestic and international best practices for representing low-income defendants and devised a research agenda on indigent defense. A report summarizing the workshop and the expert working group’s recommendations – Expert Working Group Report: International Perspectives on Indigent Defense – was issued in September 2011, which helped inform NIJ’s Solicitation for Social Science Research on Indigent Defense issued on February 23, 2012. In Fall, 2012, NIJ announced $1.5 million in grants to fund three research projects that are currently underway:  (1) an evaluation of holistic defense methods; (2) an evaluation of the factors that affect juveniles’ waiver of counsel; and (3) an examination of the challenges of representing indigent defendants with mental health disorders. In FY 2015, NIJ organized another research workshop on indigent defense.

Tribal Court Trial Advocacy Training Program: With the U.S. Department of the Interior’s Bureau of Indian Affairs (BIA), Office of Justice Services (OJS) and OTJS, ATJ helped to launch the Tribal Court Trial Advocacy Training program. This three-day trial advocacy course is designed to improve the trial skills of judges, public defenders, and prosecutors who appear in tribal courts. Trainings have been held in Rapid City, SD; Phoenix, AZ; Duluth, MN; Ignacio, CO.; Great Falls, MT; Chinle, Navajo Nation, AZ; Seattle, WA; Albuquerque, NM; Flagstaff, AZ; Missoula, MT; Grand Forks, ND; Reno, NV; and Philadelphia, MS, and additional trainings are being scheduled for the coming year. All trainings are free and are staffed by attorneys from ATJ, Assistant United States Attorneys who practice in Indian Country, the Executive Office for U.S. Attorneys’ Native American Issues Coordinator, Assistant Federal Public Defenders, and tribal prosecutors, public defenders, and judges.

Criminalization of Poverty

Over fifty years ago, former Attorney General Robert Kennedy observed that “the rich man and the poor man do not receive equal justice in our courts.” Today, in far too many places in the United States, too many people are in jail simply because they are poor. As Attorney General Loretta Lynch explained, “the consequences of the criminalization of poverty are not only harmful, but they are so far-reaching.”  When people are incarcerated simply because they are poor, they often lose their jobs, may lose their housing, or be forced to abandon their education. They and their families often sink deeper into poverty. The Office for Access to Justice has made it a priority to ensure that in our criminal justice system all people receive the equal protection of the law, regardless of their money or their means.

• Supporting Bail Reform Efforts

Varden v. City of Clanton:In 2015, ATJ and CRT filed a Statement of Interest in a suit alleging that incarcerating individuals solely because of their inability to pay a cash bond violates the U.S. Constitution. The Statement evaluated the constitutionality of fixed-money bail practices and asserted that any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes poor public policy. The filing advocated that courts make an individualized assessment of each defendant to determine whether the defendant is a threat to public safety or a flight risk, and argued that pretrial detention should be based on an objective evaluation of these factors, not on the defendant’s ability to pay. The case subsequently settled.

• Supporting Efforts to Prevent Criminalization of Homelessness

Bell v. City of Boise: In August 2015, ATJ and CRT filed a Statement of Interest in federal court in Idaho addressing the criminalization of homelessness. The case was brought by homeless plaintiffs who were convicted under Boise ordinances that criminalize sleeping or camping in public. The Department’s Statement of Interest argued that the enforcement of the city of Boise ordinances prohibiting sleeping or camping in public outdoor places, on nights when there is insufficient shelter space in Boise to accommodate the homeless population, amounts to cruel and unusual punishment in violation of the Eighth Amendment. The Department stated in the brief that “[i]t should be uncontroversial that punishing conduct that is a universal and unavoidable consequence of being human violates the Eighth Amendment . . . Sleeping is a life-sustaining activity—i.e., it must occur at some time in some place.  If a person literally has nowhere else to go, then enforcement of the anti-camping ordinance against that person criminalizes her for being homeless.”

• Supporting Efforts to Reform the Use & Abuse of Fees and Fines in State and Local Courts

White House/DOJ Convening on Fees, Fines and the “Price” of Justice: Together with the Department’s Civil Rights Division and Office of Justice Programs, as well as the White House Domestic Policy Council, ATJ held a two-day convening on the use and abuse of fees and fines, money bail practices, and the increasing criminalization of poverty in our nation’s courts. The first day, held at the Justice Department, highlighted successful reform efforts by advocates, courts and policymakers and expressly solicited input on how DOJ can assist in those efforts. The second day, held at the White House, featured remarks by senior White House officials and Attorney General Loretta Lynch, who emphasized that there can be “no price tag on justice.”

Dear Colleague Letter: In March 2016, ATJ and the Civil Rights Division issued a Dear Colleague Letter to provide greater clarity to state and local courts regarding their legal obligations with respect to the enforcement of court fines and fees.  The letter addresses some of the most common practices that run afoul of the U.S. Constitution and/or other federal laws, such as incarcerating individuals for nonpayment without determining their ability to pay.  The letter also discusses the importance of due process protections such as notice and, in appropriate cases, the right to counsel; the need to avoid unconstitutional bail practices; and due process concerns raised by certain private probation arrangements.  In addition to the Dear Colleague Letter, the Department announced additional resources to assist state and local efforts to reform harmful and unlawful practices in certain jurisdictions related to the assessment and enforcement of fines and fees, including $2.5 million in competitive grants from the Bureau of Justice Assistance, support for the National Task Force on Fines, Fees and Bail Practices, which is led by the Conference of Chief Justices and the Conference of State Court Administrators, and a Resource Guide assembled by the Office of Justice Programs Diagnostic Center, which provides issue studies and other publications related to the assessment and enforcement of court fines and fees.