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 is pleased to distribute “Disorderly (mis)Conduct: The Problem with ‘Contempt of Cop’ Arrests”, an Issue Brief by Christy E. Lopez, a civil rights attorney with a practice focusing on police and criminal justice reform. Almost a year ago, the issue of "contempt of cop" arrests was thrust into the national news when Harvard University Professor Henry Louis Gates, Jr., was arrested by Cambridge Police Department Sergeant James Crowley. Sergeant Crowley was responding to a 911 caller who had reported a burglary in progress at Professor Gates's home, which is where the two encountered each other. As the events unfolded - Crowley's investigation of the burglary call and Gates's response to the Crowley's questions and actions - the situation escalated, and led to Sergeant Crowley arresting Professor Gates for disorderly conduct in the middle of the day just outside the front door to his house. The charges were later dropped, and after President Obama waded into the whole affair by saying that he thought the police acted "stupidly," the President later hosted a "beer summit" with both Gates and Crowley at the White House to help resolve the situation.

Ms. Lopez argues that "Sergeant Crowley's decision to arrest Professor Gates may or may not have been stupid. It may or may not have been consistent with Cambridge Police Department policy. But, if the facts are as Crowley asserted in his arrest report, the arrest was unlawful." She describes the law, and contends that, however loud, rude, or obnoxious Gates was, his behavior "falls squarely in the realm of speech protected by the First Amendment," and he should not have been arrested. Ms. Lopez continues that, "[d]espite its illegality, the arrest of Professor Gates was not unusual. This scenario - an individual being arrested after responding obstreperously to perceived police misconduct - is one that plays out routinely across the United States, albeit without the Ivy League backdrop or culminating in conflict-resolution-through-beer."

In this Issue Brief, Ms. Lopez asserts that there is "widespread misunderstanding of police authority to arrest individuals who passively or verbally defy them" and that there is "abundant evidence that police overuse disorderly conduct and similar statutes to arrest people who 'disrespect' them or express disagreement with their actions." She believes that "abusive arrests cause direct and significant harm to those arrested and, more generally, undermine the appropriate balance between police authority and individual prerogative to question the exercise of that authority." To fully explore this issue, Ms. Lopez discusses the relevant law governing these types of arrests, and several investigations of problems in police departments around the country. She then details her reasons for asserting that "the harm caused by improper arrests and threats of arrest for disorderly conduct far outweighs the justification given by some police and pundits for the aggressive (overly-aggressive, some would say) use of these statutes," and concludes by proposing "a roadmap for legislators, advocates, law enforcement officials, and others seeking to address this problem."

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