ACS Issue Briefs
"About Issue Briefs"
In order to inform law and policy discourse on a wide variety of topics, ACS regularly distributes Issue Briefs from experts in various legal fields. These papers, usually 10-20 pages, are widely distributed and written in terms accessible to legal professionals, policymakers, and the general public. Anyone interested in writing an Issue Brief should contact C21(at)ACSLaw.org.
Assessing the Indigent Defense System
Erica J. Hashimoto
ACS is pleased to distribute "Assessing the Indigent Defense System," an Issue Brief by Erica J. Hashimoto, Associate Professor of Law at the University of Georgia School of Law. Professor Hashimoto's Issue Brief is the third in a series that ACS will be publishing focused on ideas for a role that the federal government can play in helping improve the indigent defense system around the country. Attorney General Eric Holder, Congress, and other federal policymakers have taken notice of the crisis in indigent defense that has existed since 1963 when the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one, and they have specifically identified reform of the system as a priority. Professor Hashimoto examines the significant gaps that exist in the data available to evaluate the operation of the system and offers specific recommendations as to what the U.S. Department of Justice (DOJ), through its Bureau of Justice Statistics (BJS), can do to help improve the state of the data and assist with reform.
Professor Hashimoto observes that, "in spite of the fact that we live in an era that is preoccupied with data, we still lack data on the most basic questions related to the indigent defense system." She points out that we do not have the data to tell us "how many defendants are represented by the indigent defense systems" or "how many misdemeanor defendants have a right to counsel." As a result, we cannot determine "what percentage of defendants who are entitled to court-appointed representation go unrepresented." Professor Hashimoto asserts that the limited available data point to regular violations of the Constitution, but that "[w]ithout more complete data, it is impossible to adequately assess this fundamental constitutional right and know the extent of any violations around the country." She discusses several sets of data that are needed and ways in which DOJ and BJS could make significant improvements by collecting and analyzing these data. Professor Hashimoto recognizes that this will not be an easy or costless process, and that data cannot solve all of the problems with the indigent defense system, but concludes that "until we have data establishing the nature and magnitude of the problems and the most effective mechanisms for addressing those problems, we cannot begin the process of systematically solving them."
All of the Issue Briefs that ACS has published as part of this series, as well as other materials related to indigent defense, can be found by clicking here.
| Attachment | Size |
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| Hashimoto Indigent Defense.pdf | 173.11 KB |
Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali
Stephen I. Vladeck
ACS is pleased to distribute “Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali,” an Issue Brief by Stephen I. Vladeck, Professor of Law at American University Washington College of Law. This paper is being released amidst ongoing public debate about whether the federal court system should be used to try terrorism suspects, or whether the trials should be conducted by military commissions. In this Issue Brief, Professor Vladeck examines the suitability of the federal court system through the lens of a significant post-September 11, 2001, criminal prosecution – the trial of Ahmed Omar Abu Ali. The author discusses the innovative procedures that the court devised in order to deal with particular difficulties presented in the trial and, ultimately, Professor Vladeck concludes that the case “emerges as an unvarnished example of how the civilian justice system can handle high-profile criminal terrorism cases raising novel logistical challenges.” As the author states:
"If Abu Ali proves anything, it is that every case raises a unique set of practical, procedural, and substantive challenges. But perhaps it proves a bit more: where unique national security concerns are implicated, Abu Ali suggests that the courts will attempt to reach such accommodations that take into account both the government’s interest and the fundamental protections to which defendants are entitled, keeping in mind Justice Frankfurter’s age-old admonition that 'the safeguards of liberty have frequently been forged in controversies involving not very nice people.' Abu Ali reminds us that sometimes, the law is set up properly to resolve the tension between the government’s interests and the defendant’s rights, even if reasonable minds could argue (in this area of the law, as in any other) that judges sometimes get it wrong."
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| ACS Issue Brief- Vladeck Abu Ali.pdf | 261.26 KB |
From Error Toward Quality: A Federal Role in Support of Criminal Process
James M. Doyle
ACS is pleased to distribute “From Error Toward Quality: A Federal Role in Support of Criminal Process,”, an Issue Brief by James M. Doyle. Mr. Doyle is a lawyer in private practice with the Boston law firm of Carney & Bassil and the former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, which is the statewide public defender agency.
Mr. Doyle begins his Issue Brief by observing that “[c]ontemporary medicine is experiencing a vibrant quality reform movement born in the aftermath of horrific reports of fatal medical errors.” Based on the reform experience in medicine, which is a team-oriented effort built on learning from routine human errors to improve practices and “prevent those inevitable errors from ripening into tragedies,” he sees an opportunity for the federal government to “catalyze the willingness of criminal justice practitioners and stakeholders to learn from their own mistakes . . . and lay the groundwork for a continuous quality improvement initiative in America’s criminal justice systems.” With the federal government’s help in designing a common template for assessing errors in the system, serving as a clearinghouse for collecting and sharing the analyses of errors performed at the local level, and providing other modest technical and financial support, Mr. Doyle believes that this effort could “set in motion a cultural shift that improves criminal justice, not by imposing top-down federal micro-management, but by exploiting the talents and insights of local systems’ frontline practitioners.” He also believes that it could “change a culture to one that routinely, every day, concentrates on improving the reliability of the criminal process for the victims, the accused, and the public.”
Mr. Doyle’s Issue Brief is the second in a series that ACS will be publishing focused on ideas about a possible role that the federal government can play in improving indigent defense systems in states around the country. Attorney General Eric Holder, Congress, and many other federal policymakers have taken notice of the crisis in indigent defense that has existed since 1963 when the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one, and they have specifically identified reform of the system as a priority. Mr. Doyle’s systemic approach to criminal justice reform, which he believes will help identify problems that undermine compliance with the Sixth Amendment, offers another recommendation as to what the U.S. Department of Justice, Congress, and other parts of the federal government do to help bring about reform.
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| ACS Issue Brief - Doyle - From Error Toward Quality.pdf | 245.43 KB |
A Legislative Approach to Indigent Defense Reform
Cara H. Drinan
ACS is pleased to distribute “A Legislative Approach to Indigent Defense Reform”, an Issue Brief by Cara H. Drinan, Assistant Professor of Law at The Catholic University of America, Columbus School of Law. Nearly every person who has observed the criminal justice system in action has seen that there are serious problems with providing representation to poor people accused of crimes. In 1963, the U.S. Supreme Court held in Gideon v. Wainwright that each state has an obligation under the Sixth Amendment to the U.S. Constitution to provide a criminal defendant with an attorney when he or she cannot afford one. Since then, even the best indigent defense systems have been overburdened, underfunded, and faced a host of other problems that undermine the ability of attorneys to zealously and ethically represent their clients. Attorney General Eric Holder, Congress, and many other federal policymakers have taken notice of this crisis in indigent defense and specifically identified reform of the system as a priority. But what can the U.S. Department of Justice, Congress, and other parts of the federal government do to help bring about reform? Professor Drinan’s Issue Brief is the first in a series that ACS will be publishing focused on ideas about a possible federal role in improving indigent defense systems in states around the country.
In her Issue Brief, Professor Drinan proposes a piece of legislation that would allow federal courts to hear claims alleging that a state has systemically violated the Sixth Amendment right to counsel. Some lawsuits like this have made progress recently in state courts in New York and Michigan, but suits of this type are still relatively rare and may not be feasible in every state. Professor Drinan argues that “[i]ndigent defense reform advocates need an opportunity to bring systemic indigent defense challenges . . . in the federal courts – courts that have traditionally been a refuge for victims of state constitutional violations.” She discusses current obstacles to federal court challenges, and why legislation like what she proposes is necessary and appropriate to make such suits possible. Professor Drinan proposes specific statutory language and discusses how it achieves several important goals, such as clearly affirming each state’s obligation under Gideon, taking full account of relevant Supreme Court precedent, clearly delineating limits on the proper parties to such a lawsuit, and enabling appropriate remedies. She also addresses several likely concerns that critics may raise about a proposal like hers, and concludes that “[g]iven the national crisis in indigent defense services, bold, timely action like the legislation that I propose in this Issue Brief is required and more than justified. Congress should consider enacting this or similar legislation soon, and the Attorney General should push for its passage.”
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| ACS Issue Brief - Drinan Indigent Def Reform.pdf | 268.5 KB |
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