“The Constitution of the United States guarantees adequate counsel for indigent defendants, and the Department of Justice is committed to ensuring that right is met,” said Attorney General Loretta Lynch in September 2015.1 Yet this commitment is a relatively recent development for the Department of Justice (DOJ). In 2010, the DOJ launched the Access to Justice Initiative to help improve justice systems that serve people unable to afford lawyers.2 Since then, the DOJ has assumed an unprecedented role in addressing constitutionally inadequate state provisions of counsel. Critical to this active role has been the DOJ’s nascent strategy of filing statements of interest to support the right to counsel in state courts.3 Recently, the DOJ broke new ground in this effort, filing a statement in N.P. ex rel. Darden v. State,4 a class action lawsuit alleging systemic deprivation of juveniles’ right to counsel,5 to assert — for the first time — the United States’s interest in children’s due process right to counsel.6 One month after the filing, the N.P. parties settled, submitting a joint consent decree that promised to remedy the alleged right-to-counsel violations.7 Apart from offering a potentially persuasive interpretation of constitutional law, the N.P. statement — considered with previous DOJ filings — suggests that DOJ participation in state right-to-counsel litigation may be a powerful tool for mitigating the institutional obstacles such litigation has traditionally faced.
On January 7, 2014, indigent children and adults facing criminal prosecution in Georgia’s Cordele Judicial Circuit (the Circuit) filed a class action lawsuit in Georgia superior court claiming that the right to counsel “is routinely violated or reduced to a hollow formality” in the Circuit.8 Specifically, the N.P. plaintiffs alleged that “[c]hildren routinely appear in a juvenile court without counsel” and that some children are even “tried and sentenced without counsel despite their desire to be represented by counsel.”9 The complaint further claimed that the Circuit’s public defender office is so “severely understaffed and grossly underfunded”10 that public defenders “are unable to provide representation in all of the courts and cases in the Circuit.”11 Accordingly, detainees “regularly languish in jail for weeks or months”12 without assistance of counsel, even though Georgia law requires public defenders to assist clients “not more than three business days after” their arrest and application for counsel.13 Thus, the plaintiffs argued, poor criminal defendants in the Circuit lack any meaningful right to counsel.14 They are instead merely “processed through the courts in assembly-line fashion.”15
The N.P. plaintiffs primarily grounded their request for relief in the Due Process Clause of the Fourteenth Amendment.16 Invoking the Supreme Court’s landmark decisions in Gideon v. Wainwright17 and In re Gault,18 the plaintiffs emphasized that the right to counsel attends “every indigent child accused of a delinquent act and adult accused of a crime who faces the loss of liberty.”19 Yet, the plaintiffs argued, the Circuit public defender office’s caseloads “vastly exceed national standards[,] . . . mak[ing] it impossible” for public defenders to perform even the “basic duties of an attorney.”20 Accordingly, the plaintiffs sought injunctive relief to require Georgia to provide meaningful and timely counsel to all indigent children and adults facing loss of liberty in the Circuit.21
On March 13, 2015, the DOJ filed a statement of interest in N.P., directly addressing — for the first time in its history — children’s due process right to counsel in state courts.22 Characteristically, the DOJ filed its statement “[w]ithout taking a position on the merits of the case.”23 Instead, the DOJ aimed “to assist the Court in determining the types of safeguards that must be in place to ensure that children receive the due process the Constitution demands.”24
Like the N.P. plaintiffs, the DOJ grounded its analysis in due process doctrine.25 Yet the DOJ went beyond the reasoning in Gideon and Gault, asserting not only that children have a right to counsel, but also that they “are entitled to procedural safeguards that acknowledge their vulnerability.”26 For support, the DOJ cited the Supreme Court’s recent tendency to increase juvenile protections based on “significant gaps between juveniles and adults,”27 including children’s “immaturity, impetuosity, and failure to appreciate risks and consequences.”28 Thus, the DOJ asserted, considerations of these vulnerabilities should apply “to the entirety of a juvenile’s contact with the justice system.”29 Accordingly, while traditional standards of representation serve as a baseline for juvenile defense, “the unique qualities of youth demand special training, experience and skill for their advocates.”30 In particular, the DOJ argued, juvenile defenders must be able to “build a trust-based attorney-client relationship”31 that spans “the time of arrest through the disposition of [the] case.”32 Consequently, when “severe structural limitations” deny public defenders “the time or resources to engage in effective advocacy” or prevent them from “receiv[ing] adequate training or supervision,” juveniles lose their right to counsel in a system of “de facto nonrepresentation.”33 Indeed, the DOJ cautioned, “[i]f the allegations in this case are ultimately proven true, then Plaintiffs are being systematically deprived of their constitutional right to counsel.”34
Finally, the DOJ asserted that considerations of juvenile vulnerability also demand that a “juvenile’s waiver of counsel cannot be knowing, intelligent, and voluntary without first consulting counsel.”35 In the DOJ’s view, since children “tend to underestimate the risks involved in a given course of conduct”36 and since decisions to waive counsel “must be well thought-out, with an understanding of present and future ramifications,” children suffer a disadvantage in deciding to waive their right to counsel.37 Thus, the DOJ concluded, given “the serious and weighty responsibility”38 that falls upon courts accepting waivers of counsel, courts should not accept juvenile waivers without first appointing an attorney to “explain the importance of counsel.”39
On April 20, 2015, one month after the DOJ’s filing, the parties to N.P. submitted a joint consent decree to the court.40 Without “admit[ting] to the truth or validity of any claim,”41 several state and county defendants agreed to “the addition of two full-time, salaried lawyers and one full-time, salaried investigator” to the Circuit Public Defender office;42 to have public defenders interview detainees “within three . . . business days” of being taken into custody;43 to provide defendants with consistent representation “through final disposition”;44 to create a juvenile division within the Public Defender office with “[a]t least one full-time public defender”;45 to have public defenders, upon “notice from the juvenile court,” describe to indigent juveniles the “services of counsel available” and “the benefits of such representation”;46 and to have every public defender attend criminal defense training, with juvenile defenders attending “at least one juvenile delinquency defense training program per year.”47 The parties agreed to keep the consent decree in effect for three years.48
The DOJ’s N.P. statement of interest — considered in context with the DOJ’s two previous right-to-counsel statements — suggests that DOJ filings in state indigent defense litigation may be an important tool to help effect outcomes favorable to the right to counsel in state courts. The apparent influence of these statements may result from the way DOJ filings garner national media attention and encourage settlement agreements. In this way, the filings may mitigate one of the traditional obstacles to structural right-to-counsel litigation: the “inhospitable fora” of state courts.49 Although the precise influence of the DOJ’s emergent filing strategy remains to be determined, the DOJ’s right-to-counsel statements of interest to date suggest that federal participation in state indigent defense litigation may be a powerful means of securing the right to counsel in state criminal justice systems.
In spite of broad consensus that state indigent defense systems are in crisis,50 structural challenges to state provisions of counsel have historically been rare.51 Where they have been made, these challenges have faced several powerful obstacles.52 Here, two related obstacles deserve particular attention: abstention doctrine and the “inhospitable fora” of state courts.53 Invoking abstention, federal courts have consistently dismissed lawsuits that “would likely require intensive federal judicial oversight of state prosecutions”54 in order to preserve principles of “federalism and comity.”55 Accordingly, abstention has relegated these structural challenges to the province of state courts.56 At first blush, state courts might seem like ideal fora for these lawsuits since state judges would presumably be familiar with right-to-counsel violations in their courtrooms. Yet as Professor Cara H. Drinan has noted, in the thirty-nine states that hold judicial elections, “there is good reason to think that these judges are subject to the same pressure to be perceived as ‘tough on crime’ as politicians often are.”57 In this way, the “political process failure” that “has led states to default on their obligation” to provide counsel may be as salient in state courts as it is in state legislatures.58 Thus, because indigent defendants lack political leverage, “elected state courts may be particularly inhospitable fora” for these structural challenges to state provisions of counsel.59
The DOJ’s N.P. statement of interest appears to have played a critical role in helping overcome state-level institutional barriers to produce a favorable legal settlement. Although precisely describing the statement’s causal relationship to the resulting settlement is difficult, evidence suggests that the statement helped produce the settlement in at least three ways. First, the U.S. Attorney who filed the N.P. statement “became actively involved in the case” after the filing “and helped mediate the settlement.”60 Thus, by introducing a third-party federal mediator to the litigation, the DOJ filing may have helped enable the N.P. plaintiffs to reach an out-of-court settlement, thereby circumventing the elected state courts. Second, not only did the U.S. Attorney mediate, but he also used the DOJ statement to enlist Georgia’s Attorney General and Solicitor General to “help[] all involved reach a consensus” in N.P.61 In this way, by engaging high-profile state political actors, the statement and the U.S. Attorney may have helped accelerate the settlement process.62 Third, the DOJ filing helped attract additional national media attention to the litigation,63 which may have strengthened the defendants’ incentives to settle.64
The DOJ’s two previous right-to-counsel statements of interest lend additional support to the idea that DOJ filings might be able to play an important role in helping to prompt structural state indigent defense reform. First, in Wilbur v. City of Mount Vernon,65 the DOJ filed a statement of interest in federal court supporting the right to counsel in adult proceedings.66 Like in N.P., this statement generated national media attention,67 transforming a “city of about 8,000 people into a national symbol.”68 Unlike N.P., however, Wilbur did not settle.69 Instead, the court found that the defendant cities had “systemic flaws that deprive[d] indigent criminal defendants of their Sixth Amendment right to the assistance of counsel.”70 Counsel for one of the defendant cities reportedly suggested that he had “no doubt” that the DOJ filing played a role in the court’s “sharp rebuke” of the cities’ indigent defense systems.71 Second, in Hurrell-Harring v. State,72 the DOJ filed a statement of interest in New York state court to provide a framework for assessing systemic constructive denial-of-counsel claims.73 Like in N.P., the DOJ statement garnered national media attention.74 Also like in N.P., the parties to Hurrell-Harring had “extensive negotiations” after the filing and settled the case only one month later,75 even though litigation had been ongoing for seven years.76
Considered together, N.P., Wilbur, and Hurrell-Harring suggest that DOJ statements of interest might be able to play an influential role in addressing unconstitutional state provisions of counsel. Accordingly, the DOJ should pay careful attention to its apparent influence and continue to seek out new opportunities to stake “the United States’ compelling interest in protecting the right to counsel.”77 Of course, the difficulty of measuring these statements’ precise impact limits their predictive capacity regarding potential future statements.78 Indeed, external variables may dictate these statements’ influence. Notably, for example, it is unclear how the DOJ selects the cases in which it files statements. High-ranking DOJ officials have “encouraged [DOJ] lawyers to look for local cases that present[] . . . important civil rights arguments.”79 But it remains uncertain whether the DOJ seeks out cases where its involvement may tip the balance or whether the DOJ prefers well-positioned cases likely to succeed on the merits. Still, the apparent impact of the DOJ’s statements to date is itself a noteworthy development in the right to counsel in state courts. And the reasonable inference that these statements may exercise influence by helping to overcome state-level institutional barriers to the right to counsel is even more significant. At least in Georgia, there is good reason to believe that DOJ participation may have helped effect critical reform. The DOJ must therefore continue “sending a clear message”80: for at least some of the millions who will face criminal prosecution in their lifetimes, a DOJ statement of interest could be the difference between a meaningful right to counsel and a “hollow formality.”81