[Congressional Record Volume 162, Number 109 (Thursday, July 7, 2016)]
[Senate]
[Pages S4917-S4918]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

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      By Mr. BOOKER:
  S. 3144. A bill to enforce the Sixth Amendment right to the 
assistance of effective counsel at all stages of the adversarial 
process, to confer jurisdiction upon the district courts of the United 
States to provide declaratory and injunctive relief against systemic 
violations of such right, and for other purposes; to the Committee on 
the Judiciary.
  Mr. BOOKER. Mr. President, I rise to introduce the Clarence Gideon 
Full Access to Justice Act, Gideon Act, and the Equal Justice Under Law 
Act of 2016, two bills aimed at addressing the access to justice 
crisis. Today, America's broken justice system is riddled with 
deficiencies in our indigent defense system and gaps in legal services 
to the poor. To repair those shortcomings, these bills would improve 
the justice delivery system that serves people who are unable to afford 
counsel.
  Gaps in legal services to the poor exist at all levels of our justice 
system. To fill in those gaps in the highest court of our land and 
better balance the scales of justice between the government and the 
defendants, the Gideon Act would establish an independent federal 
public defender office charged with representing poor defendants before 
the United States Supreme Court. To address the indigent defense crisis 
in the states, the Equal Justice Under Law Act would create a private 
right of action that allows a class of indigent defendants to sue in 
federal court when systemic violations of their Sixth Amendment rights 
to counsel occur.
  In 1963, the Nation's highest court ruled that Americans have a Sixth 
Amendment right to an attorney in a criminal case, even if they cannot 
afford one. In Gideon v. Wainwright, the Supreme Court declared it an 
``obvious truth'' that ``any person hailed into court, who is too poor 
to hire a lawyer, cannot be assured a fair trial unless counsel is 
provided to him.'' By clarifying that counsel must not only be present, 
but be ``effective,'' Gideon marked a landmark shift towards creating a 
justice system that safeguards equal justice under law for all.
  Nearly 5 decades after Gideon, its promise of equal justice remains 
unfulfilled. Today, the federal government has no entity dedicated to 
furnishing legal counsel for criminal defendants in Supreme Court 
cases. Rather, lawyers in private practice who volunteer their services 
or public defenders who often have never argued before the High Court 
are often tasked with delivering competent legal representation to the 
poor in Supreme Court criminal cases.
  The prosecution, however, has highly specialized lawyers from the 
U.S. Department of Justice who represent its interests. With a small 
cadre of lawyers from the Solicitor General's Office dedicated solely 
to Supreme Court litigation, the government amasses considerable 
appellate experience before the Court. As the most frequent advocate 
before the Court, the Solicitor General routinely files writs of 
certiorari and argues criminal cases each term. With this experience, 
the government has the opportunity, foreclosed to defendants with 
private attorneys, to establish familiarity and, ultimately, 
credibility with the Court.
  The structural imbalance between prosecutors and defendants at the 
Supreme Court has a profound impact on our justice system. Without 
counsel trained and experienced in Supreme Court advocacy, the 
likelihood that cases are decided against criminal defendants 
increases. In addition, the development of criminal precedent can far 
too often tilt in favor of the government and against the civil rights 
of ordinary Americans seeking justice in criminal cases.
  To address these structural deficiencies, I am introducing the Gideon 
Act. This bill would establish a Federal corporation called the 
Defender Office for Supreme Court Advocacy, which would be dedicated to 
Supreme Court advocacy on behalf of criminal defendants. The bill aims 
to breathe life into the Sixth Amendment's guarantee of effective 
assistance of counsel and to help level the playing field at the 
Supreme Court between prosecutors and defendants.
  The Gideon Act would empower the office with critical tools to 
zealously represent indigent defendants at the front end, middle, and 
back end of the Supreme Court advocacy process.
  At the front end, known as the writ of certiorari stage, the office 
would have authority to monitor noncapital Federal and State cases 
seeking Supreme Court review for Federal law issues. By allowing the 
office to file cert petitions in criminal cases, the office could have 
critical input into which criminal cases the Supreme Court accepts to 
hear and decide. By empowering the office to consult with lawyers 
representing criminal defendants seeking the High Court's review, the 
office can serve as a resource to lawyers inexperienced in Supreme 
Court advocacy.
  During the middle of the process, known as the merits stage, the 
office would be empowered to zealously represent the poor. From filing 
merits and ``friend of the court'' briefs to responding to the Court's 
``call for views'' on complex criminal law issues to participating at 
oral argument in criminal cases, the office could provide all forms of 
advocacy on behalf of the poor. As such, the office would provide a 
necessary counter-weight for defendants to prosecutors' specialized 
Supreme Court expertise within Solicitor General's Office. It would 
also provide a centralized resource for defenders to develop uniformity 
on federal criminal case law.
  On the back end, after a Supreme Court case is completed, the office 
could help train other defenders throughout the nation on the unique 
experience of practicing before the Supreme Court. In addition, the 
office would have the power to participate in appellate advocacy before 
the highest State courts in our land, if resources permit. This tool is 
necessary to help develop criminal case law nationwide since most 
criminal cases that the Supreme Court hears a term come Federal 
criminal law issues arising from State courts, rather than from Federal 
courts.
  Today, I am also introducing the Senate companion to H.R. 5124, the 
Equal Justice Under Law Act. This bill aims to address America's public 
defense crisis, and I thank Rep. Patrick Maloney for his leadership on 
this bill in the House of Representatives.
  Today, many State and local governments have failed to provide the 
funding necessary for public defenders to keep pace with the flood of 
criminal cases. Without resources, many public defenders lack the 
staff, training, or time to investigate each case adequately and 
prepare a robust legal defense. As a result of being underpaid and 
overworked, they are simply unable to provide the accused with their 
right to effective assistance of counsel.
  Ample evidence exists that shows the state of public defense in 
America is in crisis. According to the American Bar Association, 
anywhere from 60 to 90 percent of criminal defendants need publically 
funded attorneys. Yet, due to a lack of resources, far too many public 
defenders are unable to meet this demand. In fact, a 2013 report from 
the Brennan Center for Justice concluded that public defense offices 
are so overworked and underfunded that clients are not getting the 
legal representation they need. Citing a funding disparity between the 
prosecution and public defenders, the report found that State 
prosecutors' office budgets were $5.8 billion in 2007, while State and 
local public defender expenditures were only $2.3 billion.

[[Page S4918]]

  Excessive caseloads are another example of how Americans' right to 
counsel is defective. In 2009, the Constitution Project's National 
Right to Counsel Committee--comprised of current and former judges, 
prosecutors, public defenders, and law enforcement officials--released 
a report entitled ``Justice Denied: America's Continuing Neglect of Our 
Constitutional Right to Counsel.'' The report found that all too often 
indigent defendants were provided counsel late or not at all. Even when 
a public defender represented a defendant, the report showed that 
lawyers' excessive caseloads made effective representation simply not 
possible. In conclusion, the report recommended ``litigation to remedy 
such deficiencies should be instituted.''
  To help fix the indigent defense crisis, the Equal Justice Under Law 
Act of 2016 would implement this common-sense recommendation into 
action. The bill would create a federal cause of action that allows 
indigent criminal defendants to file a lawsuit against states and 
localities for systemic failures to provide effective assistance of 
counsel in felony cases. Litigation to be a useful tool to remedy 
systemic failures when indigent defense systems require defense 
attorneys to represent more clients than they can competently represent 
or otherwise fail to assure legal representation in compliance with the 
Sixth Amendment's right to counsel.
  The bill would require states to consult with representatives from 
the public defender community prior to distributing Byrne JAG funds. 
Currently, Federal defenders are eligible for Byrne JAG funds. Yet, in 
practice, Federal defenders may not get the same proportion of these 
funds as prosecutors and law enforcement. So this provision would 
ensure that defenders are consulted before critical Federal funds are 
distributed.
  This access to justice legislation has the support of numerous civil 
rights groups, such as the National Association for the Advancement of 
Colored People and the Innocence Project.
  Our public defender system is broken. It is time we fix it. I am 
proud to introduce the Gideon Act and the Equal Justice Under Law Act 
and I urge their speedy passage.

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