The American Constitution Society has posted on its Blog the following commentary in connection the the release of an Issue Brief, Overcoming Defiance of the Constitution: The Need for a Federal Role in Protecting the Right to Counsel in Georgia by Stephen B. Bright, president and senior counsel for the Southern Center for Human Rights, and Lauren Sudeall Lucas, a staff attorney at the Center.  

On September 27, 2010, Senator Patrick Leahy introduced the Justice for All Reauthorization Act of 2010, which would reauthorize the 2004 Justice for All Act but also promises to extend, strengthen and improve many of the 2004 reforms. Among other things, the Reauthorization Act instructs the Attorney General to assist states and local governments who request support to meet their constitutional obligations under the Sixth Amendment. To make such support possible, the Act provides for $5 million to be appropriated each year for five years, starting in fiscal year 2011. The Act would eventually authorize the Department of Justice (DOJ) to file civil actions against governmental entities - or individuals acting on behalf of such entities - who engage in a pattern or practice of conduct that deprives individuals of their constitutionally-protected right to counsel. Unfortunately, the latter provision of the Act would not take effect for two years, first giving states and local governments a chance to rectify existing systemic deficiencies with DOJ's technical assistance.

While this may be one step in the right direction, as a solution, its magnitude fails to mirror the dimensions of the greater problems facing indigent defense systems across the country. In Georgia, where millions of dollars collected through a statutory scheme to provide for indigent defense have been diverted to other government purposes, public defender offices are overwhelmed by crushing caseloads and forced to decide which of their many clients will benefit from the meager investigative and expert funding they have been allocated. Many indigent defendants - including defendants like Jamie Weis, who are facing the death penalty - have for years been denied funding for counsel and for critical investigative and expert assistance, making a fair trial impossible. In an effort to control costs, fixed-fee contracts have been used with alarming regularity. Under such contracts, lawyers are paid a nominal amount to provide representation to a set number of defendants; often such attorneys simultaneously maintain a private practice and the financial incentive to focus on their non-paying clients can be difficult to discern.

In addition to being underfunded, Georgia's system for providing representation to poor people accused of crimes lacks critical features such as independence, proper management, effective recruitment, and a comprehensive training and continuing legal education program. In our recently-released Issue Brief, Overcoming Defiance of the Constitution: The Need for a Federal Role in Protecting the Right to Counsel in Georgia, we provide a fuller history of Georgia's indigent defense system and its current beleaguered state. Ultimately, we advocate for a greater federal role in protecting the right to counsel on a state and local level, suggesting, for example, that the federal government require greater parity between funding of the prosecution and the defense, attach minimum requirements regarding training, caseloads, and supervision to grants made directly to indigent defense programs, and condition federal grants made to prosecutors and law enforcement agencies on their jurisdiction's compliance with the Sixth Amendment.

In reality, it will take more than one federal legislative act to create change for Georgia's indigent defense system. But our suggestions regarding federal involvement stem from the recognition that, given what history has shown, there must be some motivation available other than the mandate of the United States Constitution. States like Georgia are not willing to solve this problem on their own - particularly when those who are in a position to effect change are elected into office or appointed by those who are elected into office. Supporting the rights of criminal defendants has never been a popular campaign platform and those most impacted by the criminal justice system are not a powerful political constituency. DOJ's ability and willingness to pursue civil actions against jurisdictions that are out of compliance with the Constitution can therefore fill a critical void. Moreover, such a development would be a welcome reaffirmation of the federal government's shared responsibility to enforce the right to counsel.

The inscription on the Robert Francis Kennedy Department of Justice Building in Washington reads: "The United States wins its case whenever justice is done one of its citizens in the courts." By that measure, the United States is losing left and right - not only in Georgia, but across the nation. The first step towards victory, however, will be to join the fight, and we are hopeful that the Reauthorization Act may signal a willingness on the part of the federal government to enter the fray.