Speedy Trial As a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems

• Author: Rose, Emily

Introduction

The Sixth Amendment grants that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . and to have the Assistance of Counsel for his defence[,]"1 rights that were extended to state- court trials in Gideon v. Wainwright2 and Klopfer v. North Carolina.3 Today, the majority of criminal defendants qualify for indigent representation,4 which means that the Sixth Amendment's guarantee of assistance of counsel largely turns on federal and local governments' providing adequate re- sources to indigent-defense systems.

This Note argues that significant underfunding of indigent-defense sys- tems should be counted against the government for the purposes of deter- mining whether defendants' right to speedy trial has been violated. It also contends that, in extreme cases, chronic underfunding may amount to a systemic constitutional violation that must be remedied by judicial over- sight. Sections I.A and I.B survey the status of federal and state indigent- defense systems, emphasizing how a lack of resources leads to system-wide delays in taking cases to trial. Section I.C explores the hurdles that plaintiffs must clear in order to bring ineffective assistance claims, lays out how these claims have failed to spur significant change in indigent defense, and con- cludes that ineffective assistance of counsel litigation is a dead end for sys- tem-wide reform. Part II then presents an alternative way to challenge the constitutionality of underfunding indigent-defense systems. Specifically, it asserts that indigent defenders should argue that the overworking and furloughing of indigent-defense attorneys-and the resulting delays in bringing cases to trial-violate the Sixth Amendment guarantee of speedy trial as described in Barker v. Wingo,5 Doggett v. United States,6 Vermont v. Brillon,7 and the recent dissent to dismissal of Boyer v. Louisiana.8 Moreover, in light of the standards set for bringing a speedy trial violation claim, Part II also argues that asserting a violation of speedy trial places a lower burden on the defendant than making a Strickland ineffective assistance claim. Fi- nally, Part III contends that indigent defendants and their attorneys should seek individual relief based on a violation of the right to speedy trial, and this Part also maintains that the most overburdened defender systems should seek structural injunctions mandating increased resource allocation to ensure that the right to speedy trial is protected in the future. Ultimately, this Note argues that the right to speedy trial is inextricably linked to pro- viding adequate resources for indigent-defense systems, and that, when fail- ure to provide funding for indigent defense denies a defendant the right to speedy trial, the courts should dismiss the indictment and possibly enjoin the appropriate government to provide funding in the future. Although this Note focuses mainly on the federal defender and uses federal statistics, the legal argument for holding the government accountable for delays resulting from underfunding largely applies to underresourced state and local de- fender organizations as well.9

1. THE CURRENT STRUCTURE OF INDIGENT DEFENSE AND SYSTEMIC PROBLEMS

   Section I.A describes the history and structure of the federal indigent- defense system and provides an analysis of the challenges it faces in the twenty-first century, including the particular challenges posed by the 2013 sequester. Section I.B then gives an overview of state and local indigent- defense systems and explains the chronic problems of underfunding and overwork that these systems confront. Finally, Section I.C details how de- fendants and indigent-defense providers themselves have tried and failed to use ineffective assistance claims to reform indigent-defense systems in the states, and how many legislatures have failed to address the crisis in indigent defense on their own. This analysis will show that an innovative approach to indigent-defense reform is necessary to protect the fundamental rights of criminal defendants.

   1. The Federal System

      Congress provided for indigent defense through the Criminal Justice Act of 1964 and its subsequent amendments, which established the Federal De- fender Office ("FDO") and provided funding for Criminal Justice Act "panel" attorneys ("CJAs"), who are private contract attorneys paid by the hour.10 Federal district courts, under the supervision of the circuit courts, are empowered to create a plan for their districts to provide counsel, investi- gators, experts, and "other services necessary for adequate representation."11 Today, federal indigent defendants are represented by a federal public de- fender from the FDO, by a community defender from a nonprofit local agency, or by a private CJA (in cases of conflict or overflow).12 Approxi- mately 90% of all federal criminal defendants are indigent.13 Nationwide, FDOs and local agencies take approximately 60% of their cases, while the remainder goes to panel attorneys.14 The FDO has 80 offices covering 91 of 94 federal judicial districts,15 and it opened 138,039 new cases in 2013,16 a caseload projected to increase in fiscal year ("FY") 2014.17 The remaining cases are handled by over 10,000 panel attorneys18 at an increased cost per hour and, by general consensus, at decreased efficiency.19 When an FDO cannot take a case, a CJA must be assigned to it,20 a process that the Administrative Office of the U.S. Courts believes will be delayed by budget cuts.21

      Historically, the federal-defender system was held in much higher re- gard than state systems.22 The federal system's superiority could stem from its relatively robust funding (once provided by the Defender Services Office of the Administrative Office of the U.S. Courts), which gave defenders salary parity with the U.S. Attorney's Office, lower caseloads, more training, supe- rior support staff, and better physical facilities.23 In 1997, one law professor rejoiced that

      [f]ederal defender budgetary requests are . . . depoliticized. They are based, instead, on quantifiable data and demonstrated needs, and then included with the budgetary requests for the entire judiciary. As the CJA Review Committee concluded, the judiciary has been both creative and highly ef- fective in advocating for federal defender offices.24

      Yet despite the federal-defender system's strong reputation relative to that of state and local systems, it has always faced challenges. The U.S. De- partment of Justice ("DOJ")'s Bureau of Justice Statistics estimates that 88% of federal criminal defendants with indigent counsel who are found guilty receive jail or prison sentences, while only 77% of federal criminal defend- ants with private counsel who are found guilty receive jail or prison sentences.25 In 2011, the median time it took to dispose of a federal criminal case by jury trial was 15.7 months.26 Although better resourced than state systems, federal criminal defense appears significantly less effective than its private counterparts, and the system as a whole takes staggeringly long times to dispose of cases.

      The 2013 sequester exacerbated these challenges. In FY 2013, the FDO took a $52-million funding cut, more than 9% of its budget.27 It lost over 200 employees and operated at 90% of adequate staffing levels.28 Nation- wide, between March and October, defenders took up to 20 days of fur- loughs.29 Public defenders, private attorneys, congressmen, the attorney general, and federal judges alike criticized the cuts for reducing the availabil- ity of defender services, and they implied that the March-to-October cuts may have been constitutionally invalid due to their denial of "effective counsel."30

      Aside from effective-counsel concerns, there were subtler concerns about resulting delays in the criminal justice system. Robert J. Anello, the president of the federal bar, notes as follows:

      The sequester has hindered the Second Circuit courts' ability to efficiently process criminal cases. . . .

      . . . [F]urloughed attorneys have been forced to seek adjournments of pro- ceedings-such as sentencings, plea allocutions, and suppression hear- ings-in criminal cases. A several-month lag time can also occur between the conclusion of a trial and the filing of the defendant's motion for judg- ment notwithstanding the verdict. In the Southern and Eastern Districts, these delays already have hampered the efficient resolution of criminal cases.31

      Gregory M. Sleet, then the chief judge on Delaware's federal district court, expressed concern about the justice system's ability to meet its "con- stitutional obligation in the criminal context" in the face of funding cuts to the FDO.32 Chief Judge Traxler, Chairman of the Executive Committee of the Judicial Conference of the United States, also voiced his fear that budget cuts would slow criminal prosecutions and undermine constitutional guaran- tees.33 Under the sequester, "[c]riminal prosecutions [were] delayed because defender organizations do not have the staff necessary to continue their rep- resentation of the defendant."34 Recognizing that the federal-defender fur- loughs crippled the ability of defenders to operate at full capacity, several federal courts stopped hearing criminal matters on Fridays or alternate Fridays.35 The longer the FDO operated at a reduced budget, the worse the problem became: delays snowballed over time as federal defenders and courts faced a larger and larger backlog of pending cases.36

      Additionally, cuts to the FDO meant that more criminal cases were sent to contract attorneys, causing further delay as defendants waited for the ap- pointment of a new attorney.37 The Administrative Office of the U.S. Courts noted that funding cuts made the process of assigning private attorneys slower than before the sequester and delayed payments to CJAs.38 Exacerbat- ing this problem, the FDO kept furloughs down by delaying payments to CJAs in FY...