Right to Counsel Legislation Updates

Federal

US HR 3741: National Center for the Right to Counsel Act

This bill, sponsored by Rep. Theodore Deutch (D-FL) on 07/12/2019, establishes the National Center for the Right to Counsel to improve the delivery of indigent legal services by supporting public defense systems and training programs. It was referred to the Subcommittee on Crime, Terrorism, and Homeland Security from the House Committee on the Judiciary on 08/06/2019.

State

CA AB 685: Juveniles: Indian Tribes: Counsel

This bill, sponsored by Rep. Elouise Reyes (D), requires the State Bar of California to administer grants to legal service projects and support centers in order to provide legal services to Indian tribes for child welfare matters. At the request of the tribe, the court of appeals must appoint separate counsel for a child’s tribe in any appellate proceeding involving an Indian child. In addition, the bill expands training required for appointed counsel to include the federal Indian Child Welfare Act of 1978 and cultural competency relating to out-of-home care for Indian children. The bill was sent to the Senate Committee on the Judiciary 06/06/2019.

CA SB 144: Criminal Fees

This bill, sponsored by Sen. Holly Mitchell (D), repeals the court’s authority to make a post-trial determination of a defendant’s ability to pay the costs of the public defender, order a defendant to pay these costs, or impose liens on a defendant’s property. By requiring a county to provide a public defender without charge to defendants who may have the ability to pay, this bill imposes a state-mandated local program. The bill passed the Senate on 05/29/2019 and was sent to the Assembly Committee on Public Safety on 06/06/2019.

IL H 2928: County Bail Reform Provisions

Sponsored by Rep. Justin Slaughter (D), this bill appropriates $3,500,000 from the General Revenue Fund to the State Appellate Defender for a grant program to assist counties in providing public defense providers to implement the bail reform provisions of Public Act 100-1. This Act, known as “The Bail Reform Act of 2017,” states that “a person charged with an offense shall be allowed counsel at the hearing at which bail is determined,” and if they are unable to obtain counsel, the court will appoint a public defender. The bill was re-referred to the House Rules Committee on 07/02/2019. The Senate version of this bill, SB 1606, was introduced by Sen. Elgie Sims (D) and re-referred to the Senate Assignments Committee on 07/03/2019. Neither bill has gotten out of the first committee.

IL H 2935: Juvenile Court Appointment of Counsel (Update)

Sponsored by Rep. Bob Morgan (D), this bill amends the Juvenile Court Act and states that counsel appointed for the minor and any indigent party shall appear at all stages of the trial court proceeding and the same counsel shall continue through the permanency hearings and termination of parental rights proceedings. It was enacted on 07/26/2019 and becomes effective 01/01/2020.

ME HB 1208: Right to Counsel for Juveniles (Update) This bill, sponsored by Rep. Victoria E. Morales (D), prevents children under 12 from being prosecuted for juvenile crimes, prevents children under 14 from being committed, and establishes that juveniles between the ages of 14 and 17 may only be committed if absolutely necessary. Juveniles have a right to counsel at first appearance and the court may appoint a public defender if the court feels that the interests of the juvenile need to be protected. Counsel continues representing the juvenile through all proceedings. If a disposition of commitment is decided, the court must explicitly state the reasons; if it does not, there are grounds for appeal as an abuse of discretion. The bill did not get out of the first committee and will be carried over into the next session.

NV AB 81: Indigent Defendants Legal Representation Oversight (Update)

This bill, introduced by the Assembly Committee on the Judiciary, creates the Office of Indigent Defense Services to oversee indigent criminal defense services, as well as the Board on Indigent Defense Services to oversee the Office. The Board establishes the maximum amount a county may be required to pay for indigent defense services. The bill also allows for the transfer of responsibility for the provision of indigent defense services from a county not required to have an office of public defender to the State if the board of county commissioners agree. It was enacted on 06/10/2019 and goes into effect on 10/01/2019.

NY SB 6004: Hourly Compensation Rate for Assigned Counsel

Sponsored by Sen. Jamaal Bailey (D), this bill amends the County Law by doubling the hourly compensation rate for assigned counsel and subjecting it to an annual cost of living increase. This rate has not been adjusted since 2003, at which time it was lowered. The bill was amended in the Senate Committee on Local Government on 06/13/2019.

OR HB 3145: Public Defense Service Improvement Study (Update)

This bill, sponsored by the House Judiciary Committee, establishes the Task Force on Public Defense to review requirements and best practices regarding public defense services in municipal and justice court proceedings, and to produce a report with recommendations for the Legislative Assembly by 12/31/2020. Upon passage, this Act would declare an emergency to emphasize the importance of the Act to “public peace, health and safety.” The bill failed to pass the Senate on 06/29/2019 with a vote of 0-27.

OR SB 1010: Criminal Defendant Cost Payment Prohibition

This bill, sponsored by the Senate Judiciary Committee, prohibits courts from requiring a criminal defendant to pay costs associated with appointed counsel unless the defendant is convicted of a crime. It did not make it out of committee and died upon session adjournment on 06/30/2019.

TX HB 1323 (Update)

This bill, sponsored by Rep. Andrew Murr (R), makes “clear and convincing evidence” that bail and conditions of release are insufficient to ensure appearance in court and public safety the standard for denying bail. The bill would also mandate the use of a risk assessment tool when deciding pretrial release or the use of bail. Both this bill and its Senate companion SB 628 failed upon session adjournment on 05/27/2019.

VT HB 342: Qualification for a Public Defender

This bill, sponsored by Rep. Selene Colburn (D), requires that public defense services be available to any person charged with a crime, not just those charged with serious crimes. Any “needy person” detained by law enforcement without charge or judicial process, or who is charged with a crime of any level is entitled to counsel. The bill will be carried over into the next session.

WA SB 5819: Postconviction Review Board

This bill, sponsored by Sen. Jeannie Darneille (D), establishes a postconviction review board and review process for the early release of offenders who qualify. Those determined to be indigent have the right to counsel when petitioning for release under this bill. To qualify, offenders must have served 15 to 20 consecutive years, or must be at least 60 years old and have served half of their sentence. The bill will be carried over into the next session.

Friday May 31, 2019 Legislative Updates!

Federal Legislation

US [R] S 1377

This bill, introduced by Senator Kamala Harris (CA-D), seeks to increase access to justice and to assist with the tracking of public defense data, protect due process rights, and to ensure that public defender compensation reflects the importance of their work. The bill includes a grant program that will require data collection, workload limits, implementation of a pay equity program with the corresponding prosecutor’s office, funding for public defense training, a student loan repayment program, and a requirement to report defendants who are either pro se litigants or being represented by public defense providers if states are using Byrne JAG funding for this. The bill has been read twice in the Senate as of 5/08/2019, and the text of the bill can be found here.

State Legislation

IL [R] SB 1966

This bill, sponsored by Senator Julie Morrison (D), seeks to amend the State Appellate Defender Act. It creates the Public Defender Bail Reform Grant Program to assist county public defenders to implement a provision of the Code of Criminal Procedure of 1963 which requires counsel at bail hearings. It also provides that the Public Defender Bail Reform Grant Program is to be administered by the State Appellate Defender, under the direction of the State Appellate Defender Commission. The bill has been referred to the Judiciary Committee as of 5/29/19, and the text of the bill can be found here.

IL [R] HB 2935 (*Update)

This bill, sponsored by Representatives Bob Morgan (D) and Andre Thapedi (D), amends the Juvenile Court Act and states that counsel appointed for the minor and any indigent party shall appear at all stages of the trial court proceeding, and the appointment shall continue through the permanency hearings and termination of parental rights proceedings subject to withdrawal, vacating of appointment, or substitution. The bill has passed both houses as of 5/21/19 and is awaiting the governor’s signature. The text of the bill can be found here.

IN [R] SB 488 (*Update)

This bill, sponsored by Senators Michael Young (R), Eric Koch (R), Greg Taylor (D), Lonnie Randolph (D), John Young (R), Gregory Steuerwald (R), and Ryan Dvorak (D), establishes a public defender commission to create guidelines for a multi-county public defender’s office. The bill: (1) creates a multicounty public defender’s office; and (2) states that the multi-county public defender’s office will provide legal services to indigent persons located in the areas subject to the interlocal agreement. It requires interlocal agreements concerning indigent criminal defense to be administered by a joint board and prohibits certain persons from acting as a member of a joint board. The bill was signed into law on 4/24/2109. The text of the bill can be found here.

ME [R] LD 1684

This bill, sponsored by Representative Victoria Morales (D), seeks to improve due process for juveniles. The bill prevents anyone under the age of 12 from being prosecuted for a juvenile crime. It also states that juveniles have a right to counsel a first appearance, that the court may appoint a public defender if they feel the interests of the juvenile need to be protected, and that counsel will stay with the juvenile through all proceedings. The bill also creates a review process for the incarceration or commitment of a juvenile to allow for the pursuit of alternatives to incarceration if possible. The bill has been tabled as of 5/28/19, and the text can be found here.

MO [R] HB 42 (*Update)

This bill, sponsored by Representative Ingrid Burnett (D), states that if a child waives his or her right to counsel, such waiver shall be made in open court and be recorded and in writing. In determining whether a child has knowingly, intelligently, and voluntarily waived his or her right to counsel, the court shall look to the totality of the circumstances, as specified in the bill. If a child waives his or her right to counsel, the waiver shall only apply to that particular proceeding. The bill also specifies certain proceedings in which a child’s right to counsel shall not be waived. The bill was passed by the House on 4/11/19, and the text can be found here.

MT [R] SB 315 (*Update)

This bill, sponsored by Sen. Scott Sales (R), requires a local government to provide counsel to a defendant charged solely with a violation of an ordinance adopted by the local government if the ordinance includes the possibility of incarceration upon conviction for the violation. It also prohibits the Office of the State Public Defender from providing assistance of counsel to a defendant charged with a violation of a local ordinance. The bill died in process as of 4/25/2019, and the text of the bill can be found here.

NV [R] AB 81 (*Update)

This bill, introduced by the Assembly Committee on the Judiciary, creating the Office of Indigent Defense Services within the Office of the Governor to oversee criminal defense services provided to indigent persons in this State, the Board on Indigent Defense Services consisting of various appointed persons to oversee the Executive Director of the Office, and requiring the Board on Indigent Defense Services to establish the maximum amount a county may be required to pay for the provision of indigent defense services; authorizing the Board to adopt regulations governing indigent defense services. The bill also provides for the transfer of responsibility for the provision of indigent defense services from a county to the State Public Defender in certain circumstances. The bill was sent to the Senate and referred to the Committee on the Judiciary as of 5/27/2019, and the text can be found here.

NY [R] SB 1343

This bill, introduced by Senator Brian Benjamin (D), aims to reform the community supervision program in New York State.  A section of the bill would require that people who were having their community supervision revoked has the right to counsel during all hearing involved in that process. The bill was amended and recommitted to the committee of Crime Victims, Crime, and Correction as of 4/24/2019, and the text of the bill can be found here.

OR [R] HB 3145

The bill, sponsored by the House Committee on the Judiciary, would make several changes to the Public Defense Services Commission. The bill moves the Public Defense Services Commission from judicial to the executive branch; expands the membership of commission from seven to eleven members; modifies appointing authorities and qualifications of members; modifies the manner in which member may be removed; directs commission to establish Office of Public Defense Services with trial division in addition to appellate division; requires commission to adopt caseload standards and statewide workload plan; prohibits commission from approving contract authorizing flat fee compensation structure; directs the executive director to develop certain policies and standards for provision of public defense services including performance metrics, quality assurance standards and training requirements; establishes requirements for contracts for provision of public defense services; specifies contents of report by the executive director to the commission and the Legislative Assembly; directs task force to submit report with recommendations to interim committees of Legislative Assembly related to judiciary no later than September 15, 2021. The bill has been referred to Ways and Means as of 4/22/19, and the text can be found here.

PA [R] SB 658

This bill, sponsored by Senator Brown (R), seeks to establish the Center for Effective Indigent Defense Legal Representation, providing for duties and responsibilities of the board of directors, and making an appropriation for the creation of the Center. The bill has been referred to the Judiciary Committee as of 5/17/19, and the text can be found here.

TX [R] HB 1323 TX [R] SB 628 (*Update)

These bills, authored by Representative Andrew Murr (R) and Senator John Whitmire (D), would use clear and convincing evidence as to the standard for denying bail, and would allow mandating the use of a risk assessment tool when deciding the usage of bail, and does not require the usage of monetary bail. The House bill has had a report on it sent to Calendars as of 4/29/2019, and the Senate bill has added Senator John Whitmire (D) and Senator Nathan Johnson (D) to the bill as co-authors while in the Judiciary Committee, and the text for the House bill can be found here, and the Senate bill here.

WV [R] SB 103

This bill, sponsored by Senator Charles Trump (R), makes several changes to the state Public Defender Services. Included in the changes are requiring Public Defender Services to establish and operate a division within the agency for the purpose of prosecuting writs of habeas corpus on behalf of eligible clients in the circuit courts of the state and before the Supreme Court of Appeals upon appointment by a court; transferring initial authority to review, approve, modify, or refuse panel attorney vouchers from circuit courts to Public Defender Services; providing for resubmission or reconsideration of vouchers previously modified or refused; authorizing the Executive Director of Public Defender Services, with approval of the Indigent Defense Commission, to contract for noncriminal legal services; providing for payment of contracts; authorizing agency to reduce or reject vouchers or requests for payment; requiring panel attorneys to maintain time-keeping records to enable the attorney to determine time expended on a daily basis; setting record-keeping standards; and requiring prompt processing and payment of vouchers; and increasing the rates of compensation for panel attorneys. The bill was signed into law as of 4/16/19, and the text of the bill can be found here.

Friday April 5, 2019 Legislative Updates!

IL [R] HB 2935

This bill, sponsored by Representatives Bob Morgan (D) and Andre Thapedi (D), amends the Juvenile Court Act and states that counsel appointed for the minor and any indigent party shall appear at all stages of the trial court proceeding, and the appointment shall continue through the permanency hearings and termination of parental rights proceedings subject to withdrawal, vacating of appointment, or substitution. The bill passed the house (112-0) on 3/28/2019 and was sent to the Senate Committee on Assignments on 3/28/2019.The text of the bill can be found here.

IN [R] SB 488

This bill, sponsored by Senators Michael Young (R), Eric Koch (R), Greg Taylor (D), Lonnie Randolph (D), John Young (R), Gregory Steuerwald (R), and Ryan Dvorak (D), establishes a public defender commission to create guidelines for a multicounty public defender’s office. The bill contains the following parts: (1) create a multicounty public defender's office; and (2) provide legal services to indigent persons located in the areas subject to the interlocal agreement. It requires interlocal agreements concerning indigent criminal defense to be administered by a joint board and prohibits certain persons from acting as a member of a joint board. The state senate concurred with house amendments in a roll call on 4/1/19 and has been sent to the governor’s desk to be signed into law. The text of the bill can be found here.

MT [R] SB 315

This bill, sponsored by Senator Scott Sales (R), revises laws on public defense representation by requiring a local government to provide counsel to a defendant charged solely with a violation of a local ordinance if the ordinance includes the possibility of incarceration upon conviction for the violation. It also prohibits the Office of the State Public Defender from providing assistance of counsel to a defendant charged with a violation of a local ordinance. The bill has been tabled in the House Committee Local as of 4/2/2019, and the text of the bill can be found here.

VT [R] HB 342

This bill, sponsored by Representative Selene Colburn (Progressive) and Nader Hashim (D), proposes to require that public defender services be available to any person charged with a crime, not just to those persons charged with serious crimes. The bill passed the House and was referred to the Senate Committee on Rules on of 3/29/19.The text can be found here.

Friday March 15, 2019 Legislative Updates!

AR [R] HB 1756

This bill, sponsored by Rep. Clowney (D), would define under what circumstances a minor is able to waive their right to counsel, when a minor is not able to waive their right to counsel, and the legal admissibility of a statement made by a minor to law enforcement without counsel present. The bill was referred to the Judiciary Committee on 3/11/2019, and the text of the bill can be found here.

NV [R] AB 81

This bill, introduced by the Assembly Committee on Judiciary, creates the Office of Indigent Defense Services within the Office of the Governor to oversee criminal defense services provided to indigent persons in the state, the Board on Indigent Defense Services consisting of various appointed persons to oversee the Executive Director of the Office, and requires the Board on Indigent Defense Services to establish the maximum amount a county may be required to pay for the provision of indigent defense services. It also authorizes the Board to adopt regulations governing indigent defense services and provides for the transfer of responsibility for the provision of indigent defense services from a county to the State Public Defender in certain circumstances. The bill was referred to the Committee on Judiciary as of 2/4/19, and the text can be found here.

TX [R] HB 3827

This bill, introduced by Rep. Sherman (D), provides for a means for courts to appoint counsel for post-conviction proceedings in capital cases. The bill states that if the defendant has not chosen to proceed pro se, and the court determines there is good reason for the appointment of counsel, counsel will be appointed from a list of maintained by the court. The bill was filed as of 3/7/19 and the text of the bill can be found here.

Friday February 15, 2019 Legislative Updates!

IN [R] HB 1453 This bill, authored by Rep. John Young (R), addresses appellate defender and misdemeanor reimbursement. It establishes the office of the state appellate defender for adults and to provide direct appeals for indigent individuals; however, it states that a case that originates from Lake or Marion County is exempt from receiving services from the office of the state appellate defender and that a juvenile delinquency case that originates from Marion County is exempt from receiving services from the state appellate defender juvenile defense office. It also states that a county may be reimbursed for indigent defense services provided for misdemeanors in a superior or circuit court. The bill was referred to the Committee on Ways and Means as of 1/3/2019, and the text of the bill can be found here.

IN [R] SB 488 This bill, authored by Sen. Michael Young (R), states that county executives will adopt ordinances that allow counties to enter into an inter-local agreement with one or more counties for the purpose of: creating a multicounty public defender's office and providing legal services to indigent persons located in the areas subject to the inter-local agreement. It also requires inter-local agreements concerning indigent criminal defense to be administered by a joint board, lays out the overall structure of the board, including term limits, and prohibits certain persons from acting as a member of a joint board. The bill was referred to the House as of 1/29/2019, and the text of the bill can be found here.

IL [R] SB 63 This bill, sponsored by Sen. Patricia Van Pelt (D), would amend the Juvenile Court Act of 1987. The bill states that the chief judge of each judicial circuit may establish a Justice for Juveniles Program, which would require that juveniles arrested or detained for eligible offenses be represented by legal counsel throughout the entire custodial interrogation of the juvenile. Additionally, if a chief judge establishes a Justice for Juveniles Program, any oral, written, or sign language statement of a juvenile made without the presence of legal counsel during a custodial interrogation on or after the effective date of the Program shall be inadmissible as evidence against the juvenile in a proceeding. It also defines "eligible offense" and "juvenile". The bill was referred to assignments as of 1/23/2019, and the text of the bill can be found here.

MO [R] HB 42 This bill, sponsored by Rep. Ingrid Burnett (D), states that if a child waives his or her right to counsel, such waiver shall be made in open court and be recorded and in writing. In determining whether a child has knowingly, intelligently, and voluntarily waived his or her right to counsel, the court shall look to the totality of the circumstances, as specified in the bill. If a child waives his or her right to counsel, the waiver shall only apply to that particular proceeding. The bill also specifies certain proceedings in which a child's right to counsel shall not be waived. The bill was referred to the Children and Families Committee as of 2/07/2019, and the text of the bill can be found here.

MS [R] HB 480 This bill, sponsored by Rep. Deborah Dixon (D), amends section 43-21-311 of the Mississippi code of 1972 to say when a child of 15 years of age or younger is taken into custody for committing a delinquent act, the youth will consult with legal counsel before waiving his or her rights and requires the youth court to consider the effect of the failure to comply with the requirement of consulting with legal counsel, when applicable, before waiving his or her rights when adjudicating the admissibility of certain statements. The bill was tabled subject to call on 2/12/19, and the text can be found here.

NE [R] LB 231 This bill, introduced by Rep. Pansing Brooks (D), makes several changes to the legal defense of a juvenile. The bill creates a fund for the off-setting of costs for counties providing legal counsel of indigent juveniles, the creation of a juvenile defense filing fee, changes provisions relating to appointment of counsel for juveniles and standards for guardians ad litem and attorneys in juvenile court, and creates an option for rescission of a waiver of counsel by a juvenile. The bill will be given a hearing on 3/6/2019, and the text of the bill may be found here.

NY [R] AB 3900 This bill, sponsored by Assembly Member David Weprin (D), would allow for representation by counsel at parole hearings. The bill has been referred to corrections as of 1/31/2019, and the text of the bill can be found here.

VA [R] HB 2283 This bill, introduced by Rep. Elizabeth Guzman (D), prohibits any child age 15 and younger who is alleged to be in need of services, in need of supervision, or delinquent from waiving his right to an attorney. The bill also requires any child who is age 16 or older and is alleged to be in need of services, in need of supervision, or delinquent to consult with an attorney before such child may waive his right to an attorney. Additionally, a court must determine that such waiver is free and voluntary. The bill is currently in the Courts of Justice committee as of 2/5/2019, and the text of the bill can be found here.

US [R] HR 568 This bill, authored by Rep. Theordore Deutch (D), requires state governors to submit to the Attorney General an annual report on the number of individuals who represented themselves in court in criminal matters or juvenile delinquency matters, and for other purposes. The bill was referred to the House Committee on the Judiciary as of 1/15/2019, and the text of the bill can be found here.

Friday January 18, 2019 Legislative Updates!

MO [R] HB 42 This bill is sponsored by Representative Ingrid Burnett (D) and states that if a child waives his or her right to counsel, such waiver shall be made in open court and be recorded and in writing. In determining whether a child has knowingly, intelligently, and voluntarily waived his or her right to counsel, the court shall look to the totality of the circumstances, as specified in the bill. If a child waives his or her right to counsel, the waiver shall only apply to that particular proceeding. The bill also specifies certain proceedings in which a child's right to counsel shall not be waived. The bill is currently pre-filed as of 12/03/18, and the text of the bill can be found here.

NV [R] AB 81 This bill is currently sponsored by the Assembly Committee on Judiciary. The bill does several things, including (1) creates the Office of Indigent Defense Services within the Office of the Governor to oversee criminal defense services provided to indigent persons in the state, (2) creates the Board on Indigent Defense Services, consisting of various appointed persons to oversee the Executive Director and establish certain policies, (3) requires the Board to establish the maximum amount a county may be required to pay for the provision of indigent defense services, (4) authorizes the Board to adopt regulations governing indigent defense services, (5) provides for the transfer of responsibility for the provision of indigent defense services from a county to the State Public Defender in certain circumstances, and (6) allows such services to be transferred back to the county in certain circumstances. The bill is currently pre-filed as of 11-26-18, and the text can be found here.

OH [R] HB 781, OH [R] SB 345 Both of these bills share the same text and goals. The House Bill is currently sponsored by Representative Shane Wilkin (R). The Senate Bill is currently sponsored by Senator Bob Peterson (R). The bills create two separate pools of money within the Treasury, which are to be used for the deferment of costs associated with capital cases. One is to be used by the county prosecutor, while the other is to be used by the state public defender. The funds will be controlled by the attorney general and distributed to pay bills after approval by the court. Additional funds for each capital case will be considered under a joint request by the prosecutor and public defender. When the fund is out of money, the county and the state public defender will be responsible for their own costs. The House Bill was introduced on 12-06-18, and the text can be found here. The Senate Bill was introduced on 12-10-18 and the text can be found here.

TX [R] HB 221 This bill is currently sponsored by Representative Barbara Gervin-Hawkins (D). The bill strengthens the requirements for public defenders who will be providing representation in certain capital cases. The bill would require that public defenders in certain capital cases have experience in death penalty cases, including experience in the penalty phase of the trial or appeal, the use of mental or forensic expert witnesses, and the use of mitigating evidence at the penalty portion of the trial or appeal. The bill was filed as of 11-12-18, and the text can be found here.

UT [R] SB 32 This bill is currently sponsored by Senator Todd Weiler (R). The bill modifies provisions related to indigent defense, including a minor’s right to counsel, new legal definitions of who qualifies as indigent, methods by which defense counsel will be selected, how counsel will be paid, and reforms for how Indigent Defense Fund Board members are chosen and for how long a term should be. The bill has been sent to relevant state agencies for fiscal input as of 12-21-18, and the text can be found here.

Friday October 19, 2018: Consortium Member Updates!

Albert Cobarrubias Justice Project: (https://acjusticeproject.org/) Mother’s in Charge, a partner organization of Albert Cobarrubias Justice Project, will be opening its first participatory defense hub in Philadelphia. The program supports families of those in the criminal justice system and give them resources for interacting with the courts and corrections. YouTube link to description of the program included: https://www.youtube.com/watch?time_continue=3&v=6wPKqGiG0R8

National Association of Public Defenders: (https://www.publicdefenders.us/) The National Association of Public Defenders will host a webinar entitled Theories & Themes: How to Win Your Case on October 30th. This webinar will discuss how to develop a strong theory of defense and how to effectively use that theory from investigation through trial so that you can win your case. The Seminar will be led by Caroletta Lepingwell of the Texas Public Defender’s Office. Register at the following link: https://www.publicdefenders.us/ev_calendar_day.asp?date=10/30/2018&eventid=101

National Legal Aid and Defender Association: (http://www.nlada.org/) The National Legal Aid and Defender Association is holding their annual conference in Houston, Texas. The annual conference will have a variety of workshops pertaining to legal aid and public defense, including one on Friday November 2 from 4:15-5:45 with JPO Director Kim Ball and R2C Project Director Genevieve Citrin Ray on R2C. Dates are October 31st to November 3rd, Link: http://www.nlada.org/node/15381

Texas Fair Defense Project: (https://www.fairdefense.org/) The Texas Fair Defense Project, alongside other civil rights organizations, was successful in Dallas County stopping the use of automatically using money bail to detain people arrested for misdemeanors and felonies. A federal judge ruled the practice unconstitutional on the grounds that it unfairly targeted those defendants with little means. Link: https://setexasrecord.com/stories/511577239-federal-court-orders-dallas-county-to-stop-unconstitutional-bail-practices

The Public Defender Service for the District of Columbia: (https://www.pdsdc.org/) The Public Defender Service for the District of Columbia (PDS) will be running the PDS-CJA Appellate Consultation and Assistance Program from now until March 2019. This program will have James Klein, PDS Appellate Training Director, available full time to consult with members of the CJA Appellate Panel to offer assistance in writing of their briefs. If you would like a consult, please contact James Klein at jklein@pdsdc.org or (202) 824-2389. Announcement is at the following link: https://www.pdsdc.org/professional-resources/calendar-of-events/event/?ref=mPoqZl7GsC070s%2btGYu0FQ%3d%3d

Overview of the R2C Conference Presentation: The Importance and Benefits of Counsel at First Appearance

On August 22, Kim Ball, research professor and director of the Justice Programs Office at American University, representing the Right to Counsel (R2C) National Campaign, moderated a panel at the National Association of Pretrial Services Agencies annual conference titled The Importance and Benefits of Counsel at First Appearance. R2C consortium member, The National Association of Counties, was instrumental in helping plan, organize, and put on this presentation. Fellow panelists included D. Ashley Pennington of the Public Defender for Charleston and Berkeley Counties and Geoff Burkhart, executive director of Texas Indigent Defense Commission, and attendees included judges, federal and state pretrial associates, defense attorneys, and local policymakers interested in learning about how they can help ensure the Sixth Amendment right to counsel.

The panel’s main purpose was to inform the audience about how important the early entry of counsel is and that it is essential to ensuring pretrial liberty. Professor Ball opened the presentation talking about two research projects, one from the Baltimore City Lawyers at Bail (LAB) project and one from the Arnold Foundation. Results from a study produced by the LAB project show that counsel at first appearance supports pretrial liberty, saves money, and promotes public safety. This study found that as compared to someone without counsel, a person with counsel at bail is more likely to be released on the same day as arrest; more likely to be released on one’s own recognizance; and more likely to have the bail amount reduced. All of this resulted in fewer individuals using jail beds, which saved money and came at no additional risk to the community. Further evidence of the importance of counsel at first appearance can be found in the Arnold Foundation’s report about low- and moderate-risk defendants detained before trial in Kentucky. This study shows that when defendants are held the entire time pretrial versus defendants released at some point prior to trial, they are three times more likely to be sentenced to prison and they receive two times longer prison sentences. Together, these two studies show that early representation can reduce prison costs and increase release rates for deserving defendants.

The final study that Professor Ball discussed was from the Alameda County’s Innovative Solutions in Public Defense Initiative, which supports new projects between practitioners and researchers. Through this partnership with the National Legal Aid and Defender Association, a R2C consortium member, Alameda County implemented counsel at first appearance. Preliminary results from evaluating this program show positive improvement in release on own recognizance (ROR) rates, increasing from a 2 percent release rate to 10 percent release rate. The full report about Almeda County will be released soon. Most of the panel attendees were not familiar with these research studies, underscoring the importance of having this presentation to share these important findings.

Following Professor Ball’s overview, Mr. Pennington discussed Charleston’s efforts to improve pretrial liberty, providing the defender’s perspective. Charleston is part of the MacArthur’s Safety and Justice Challenge. As part of the initiative and with the input of all criminal justice system actors, including defense, Charleston added risk assessment at their bond court hearings. Because of this change, there was an increase in general session personal recognizance (PR) bonds of 29 percent and an increase of 22 percent in summary courts. Following, Mr. Burkhart discussed the variance in public defense delivery systems in Texas, pointing out that over 2/3 of Texas counties are rural, which presents a challenge when providing counsel at first appearance. He spoke specifically about three countries in Texas (Bexar County, Cameron County, and Harris County) that have added counsel at first appearance and highlighted that as a result of representation at first appearance, all counties have seen more individuals on pretrial release with better compliance with release conditions. First appearance is critical to securing pretrial release, promoting attorney-client relationships, and achieving just case outcomes.

The audience soaked in the research and specific county examples and were engaged, asking questions about how to implement counsel at first appearance in their countries.

For more information on the session or help with counsel at first appearance, please contact KimBall@american.edu.

Notes

Douglas L. Colbert et al, “Do Attorneys Really Matter? The Empirical and Legal Case for Representation at Bail”, 23 Cardozo L. Rev. 1719 (2002)

Pretrial Criminal Justice Research Summary, Arnold Foundation (2013) and Lowenkamp, C.T., VanNostrand, M., & Holsinger, A., Laura and John Arnold Foundation, “The Hidden Costs of Pretrial Detention” (2013)

http://www.safetyandjusticechallenge.org/

Let’s Talk about the Constitution

By Kim Ball*

Do you remember where you learned about the guarantees of our Constitution? Was it in sixth grade civics class like it was for me? My daughter Claire, who is 11, is going into sixth grade this fall, and I’m curious about whether or not she’s going to be taught about the Constitution and, specifically, about the Sixth Amendment’s right to counsel.

When I was doing trial work in Arkansas in the ‘90s, people said that the average education level of a jury was about eighth grade. Couple that with the findings in Americans’ Views on Public Defenders and the Right to Counsel, the public opinion polling effort my office conducted, that showed more than half of focus group participants did not know that the right to counsel is in the Constitution. It also showed that among lawmakers and the public alike, there appears to be a general lack of awareness about what the right to counsel means and the reality that it is not being upheld as directed by the Constitution and the landmark 1963 Supreme Court case Gideon v. Wainwright.

Last fall the Annenberg Public Policy Center at the University of Pennsylvania, released the findings from its annual national survey about the Constitution that showed that Americans are poorly informed about basic constitutional provisions. Thirty-seven percent of respondents could not name any rights associated with the First Amendment without prompting, and far fewer could name First Amendment rights other than freedom of speech—and that’s the First Amendment! It is perhaps not surprising then that we found so few people know about the Sixth Amendment and its right to counsel in our research.

As a former assistant prosecutor, I know the power structures in the criminal justice system are not balanced between the state and the defendant. Coming out of law school, I thought the system was supposed to be fair and just. So, imagine my surprise when I witnessed many bail hearings where defendants didn’t have legal representation. 

I’ve traveled to a lot of courts in this country throughout my career, seeing well-meaning judges and prosecutors tipping the balance of power because they were short on time and resources and didn’t have a clear understanding of constitutional law. Knowing that all of us in the criminal justice system want a fair and just outcome, I started the Right to Counsel (R2C) National Campaign with friends and colleagues to raise awareness about the need for courthouses all over the country to look at how their policies and procedures are playing out in real time when it comes to ensuring the right to counsel. My experience told me we needed a public awareness campaign, because we’ve gotten off track when it comes to ensuring the Sixth Amendment right to counsel, and part of the reason for this is a basic lack of information.

Advancing the R2C National Campaign has been harder than I expected. My good friend Norm Reimer, the executive director of the National Association of Criminal Defense Lawyers, told me it would be hard; he didn’t say it would be this hard! One of the biggest challenges that R2C needs to overcome is the lack of understanding that the right to counsel is a constitutional right. As confirmed in Americans’ Views, not all Americans know that guaranteeing every person accused of a crime has access to a competent lawyer is a fundamental American right written into our Constitution and that this right is being denied all across the country.

There are many reasons this issue has been swept under the rug and not garnered the attention it should, and I’m asking you to stand with me and take a good hard look at what’s going on. And not just at trial stages but also at bail hearings and first appearances where many defendants don’t have legal representation. Research shows that without counsel at these stages, defendants face more jail and prison time and have higher recidivism rates. Yes, our dockets are long and crowded, and many citizens that need mental health services are ending up in jails and courtrooms. But that’s not a reason for us to forget about the Constitution. Instead, it’s another reason to stand up and work to ensure that all courts provide and protect our right to counsel—a liberty that’s enshrined in the Constitution. 

As my daughter heads into sixth grade, I can’t help but feel strongly that we need to do a better job educating our youth about the Constitution. We need to make sure that they learn how important our constitutional rights are and what they are. We must not forget the Sixth Amendment and its right to counsel. The right to counsel is the cornerstone to protecting our liberty—and all other Six Amendment rights—in the criminal justice system.

I’m now inspired to give a presentation at Claire’s school next year about the Sixth Amendment. Join me! Let’s pledge to educate our youth on this important issue. I’ll put together a presentation on the Sixth Amendment that we can all use at middle school and will post it on our website at the beginning of the school year. Stay tuned, and once it is ready, take it and present it at your local school.

Together, let’s become more informed and make sure our youth are informed citizens that know their rights and can identify when those rights are being denied. Let’s increase the baseline of knowledge and ensure that by the time my daughter is my age, polling will find the majority of Americans know their constitutional rights, and there will no longer be a Right to Counsel National Campaign, because it’s no longer needed.

Kim Ball is the executive director of the Justice Programs Office.