The “Gideon’s Promise Act” of 2013 Would Give AG Power To Sue Public Defenders Who Violate 6th Amendment Rights

March 18th, 2013

Today, Senator Leahy introduced a bill to commemorate the 50th Anniversary of Gideon v. Wainwright (I’ll avoid my usual shtick about naming bills after people). It gives $5 million in funding to the Attorney General to provide “strategic planning” and “technical assistance” to improve representation with state PDs. That stuff is fine.

But section b is fascinating.


(1) UNLAWFUL CONDUCT.—It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental  authority, to engage in a pattern or practice of conduct by officials or employees of any governmental agency with responsibility for the administration of justice, including the administration of programs or services that provide appointed counsel to indigent defendants, that deprives persons of their rights to  assistance of counsel as protected under the Sixth Amendment and Fourteenth Amendment to the Constitution of the United States.

(2) CIVIL ACTION BY ATTORNEY GENERAL.— Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may, in a civil action, obtain appropriate equitable and declaratory relief to eliminate the pattern or practice

This provision would give the Attorney General the power to sue, and seek damages from, local agencies that administer legal aid to the poor! This is one way to ensure that states provide adequate legal services. But this would also place every single “services that provide appointed counsel to indigent defendants” under the watchful eye of the Department of Justice. In addition if the AG has “reasonable cause” to believe that there is a “pattern of practice” whereby 6th Amendment rights were violated, the AG can sue. It is unclear if this means ineffective assistance under the direct review standard, or under a deferential habeas/appellate standard. And it doesn’t even say “effective assistance.” It just says “rights of assistance.” I have no idea how this would be assessed.

Also, under this provision, public defenders will now have to contend with law suits from the Federal Government?  So if a state cuts funding for PDs, the AG will sue, and the PDs will have to defend their practice in court. I’m sure that is precisely how the PDs would want to spend their resources.

This provision is significant. Has anyone seen anything like this before?

H/T Andrew Cohen