Can state courts fix the indigent defense crisis?

Plus: Challenging life sentences for felony murder, Oklahoma rejects reparations, and more

Earlier this month, the American Civil Liberties Union of Pennsylvania filed a class action lawsuit in state court challenging the state’s indigent defense system under the U.S. and Pennsylvania Constitutions. Pennsylvania’s defender system primarily operates through county funding, and many counties, the organization argues, “lack either the capacity or the political will to adequately fund or supervise these services.”

The allegations in the lawsuit, Warren v. Commonwealth, suggest a system in crisis: people detained for months without ever speaking to a lawyer, overworked defenders failing to do even basic investigations, and individuals pressured to plead guilty without counsel so that they can be released. The plaintiffs assert, among other things, violations of their right to counsel under the U.S. Constitution’s 6th and 14th Amendments and Article I, Section 9, of the Pennsylvania Constitution, which provides that “in all criminal prosecutions the accused hath a right to be heard by himself and his counsel.”

Pennsylvania is far from the only state struggling to meet its constitutional obligations to provide representation to those who can’t otherwise afford it. Across the country, public defense systems face stark funding shortfalls and excessive caseloads. Stephen Bright, a storied death penalty lawyer and former head of the Southern Center for Human Rights, put it this way: “No constitutional right is celebrated so much in the abstract and observed so little in reality as the right to counsel.”

The challenge is largely political. Adequate criminal defense requires substantial government expenditures — and poor criminal defendants are not exactly politically popular. That’s led advocates to turn to litigation, and in recent decades lawsuits in states including California, Connecticut, Massachusetts, Nevada, and New York have led to settlements oriented toward reform.

A few points to think about. First, these lawsuits have almost always been in state court, even when they’ve raised exclusively federal claims. That’s largely a story of a federal court doctrine called Younger abstention, named for a 1971 case, Younger v. Harris, which generally bars federal courts from interfering with ongoing state criminal proceedings, even when they raise constitutional questions. State courts have been far more open to lawsuits challenging state indigent defense systems, typically relying on their inherent powers to enforce constitutional rights or on supervisory powers to ensure fair judicial proceedings.

When it comes to Pennsylvania, the state supreme court has already established much of the legal framework likely to come up in this case. Back in 2016, the court ruled in Kuren v. Luzerne County that a class of indigent criminal defendants could bring claims alleging “prospective, systemic violations of the right to counsel due to underfunding.” Warren accepts this invitation with a lawsuit challenging the indigent funding system statewide.

Yet Kuren also declined to separately analyze the plaintiffs’ state constitutional claim, explaining that the rights to counsel under the state and U.S. constitutions are “jurisprudentially coextensive.” As State Court Report readers may recall, this kind of “lockstepping” is quite common in state constitutional law — but when it comes to indigent defense litigation, there is good reason for courts and litigants to give the state constitution a closer look.

To begin with, Sixth Amendment rights may be vulnerable under today’s conservative Supreme Court supermajority. In 2019, Justice Clarence Thomas issued a dissent in a Sixth Amendment case, Garza v. Idaho, joined by Justice Neil Gorsuch, in which he argued that the “the original meaning of the Sixth Amendment” provides only for the right of criminal defendants to use counsel, not to have their representation paid for by the government. While it’s hard to see there being five votes on the Court to overrule Gideon v. Wainwright (although I might have said the same thing five years ago about Roe v. Wade . . . ), it’s quite easy to imagine the Court chipping away at its meaning.

There are also structural reasons why federal constitutional law is likely to be under-protective when it comes to the right to counsel. Indigent defense is a classic example of a complex system with broad variation across states in how it’s structured and implemented. As Rutgers Law School professor Robert Williams has argued, the Supreme Court has often imposed a “federalism discount” in how it has defined federal constitutional rights under these circumstances, reflecting a hesitance to mandate a single national rule across divergent state circumstances. State constitutions can allow courts to offer more targeted — and rights-protective — interventions.

?SCOTUS Creates Second Amendment Uncertainty for State Courts

The U.S. Supreme Court last week rejected a Second Amendment challenge to a federal law banning gun possession by people under domestic violence restraining orders. But United States v. Rahimi leaves many open questions, writes Brennan Center fellow and SMU Dedman School of Law professor Eric Ruben — questions that state courts will disproportionately be left to untangle. “Expect a lot more Second Amendment litigation as courts grapple with what Rahimi means for the future of efforts to disarm domestic abusers,” writes Ruben. READ MORE

SCOTUS’s Review of Ban on Trans Health Care Highlights Need for State Litigation

The U.S. Supreme Court said this week that it would consider the permissibility of anti-transgender discrimination under the federal Constitution. “Yet the Court is not the final arbiter of all constitutional questions in the country,” writes Quinn Yeargain, assistant professor at Widener University Commonwealth Law School. Regardless of the outcome in the federal litigation, Yeargain argues, state courts can either take rights protection further or fill gaps in federal constitutional rights — and advocates are already bringing state constitutional challenges to laws that discriminate against trans people. READ MORE

State Supreme Courts Could Abolish ‘Life Without Parole’ for Felony Murder

State supreme courts in Colorado, Michigan, and Pennsylvania are hearing challenges to life sentences imposed on those convicted of felony murder — a rule still operative in 48 states that allows for murder convictions even when the defendant lacked the intent to kill. “State supreme courts that take their constitutional obligations seriously should do what both common decency and the law demands: ban life without parole for felony murder,” argues State Law Research Initiative Director Kyle C. Barry. READ MORE

Oklahoma Supreme Court Denies Reparations for Victims of Tulsa Race Massacre

The city of Tulsa and other government entities cannot be required to pay reparations to victims of the Tulsa Race Massacre, the 1921 decimation of a prominent Black neighborhood in Tulsa by a white mob that injured and displaced hundreds, the Oklahoma Supreme Court ruled. “For more than a century, social oppression, legislative inaction, and judicial impotence have stymied the plaintiffs at every turn,” writes Martha Davis, a law professor at Northeastern University. READ MORE

Election 2024: Kansas Supreme Court Says Voting Is Not a Fundamental Right

The Kansas Supreme Court recently ruled that voting is not an “enumerated natural right” in the state Bill of Rights but a political one rooted in other parts of the constitution. The Brennan Center’s Andrew Garber analyzes the decision, arguing that it will make it more difficult to challenge laws that interfere with voting at a time when voting rights lawsuits are in courts throughout the country. “Virtually every state constitution recognizes a right to vote, yet many state legislatures have chipped away at that right in recent years,” he writes. READ MORE

Ending Qualified Immunity for State Constitutional Violations

States should reject qualified immunity, the judge-made law that often prevents those whose rights have been violated by government officials from holding wrongdoers accountable, writes Penn State Dickinson Law School professor Gary Gildin. Gildin lays out ways states can abolish the defense: by legislation, through the courts, or by constitutional amendment. “There is no single best path towards eliminating qualified immunity,” Gildin writes. “The stakes, however, are universal.” READ MORE

?

What Else We’re Watching

• The State Democracy Research Initiative and the Election Research Center at UW-Madison are hosting a virtual and in-person event on July 11, Year in Review: Democracy Litigation in SCOTUS and the States. The initiative’s codirector Miriam Seifter is moderating. Panelists, including the Brennan Center’s Gowri Ramachandran, will discuss significant election-related decisions.

?

You May Have Missed

• The Colorado Supreme Court concluded that a prosecutor’s use of a peremptory strike to remove a potential juror of color because of the juror’s past activism related to police reform was facially race-neutral, but remanded the case for further factual development. In a concurrence, three justices raised the possibility of getting rid of peremptory strikes. State Court Report previously covered how several states have changed their procedural rules or established new precedents to more carefully fight against discriminatory use of peremptory challenges.
• The Texas Supreme Court declined to hear a case that could have jeopardized access to in vitro fertilization. A divorcing couple had embryos created through in vitro fertilization. A prior contract said the husband would get the embryos in the event of a divorce, and a court enforced that agreement. But after Texas’s abortion ban went into effect, the wife asked for a new trial, claiming the embryos were not property but unborn children. An appeals court denied her claims.
• The Hawaii government and the children and teens who sued it for not doing enough to prevent and fight climate change — in violation of the state constitution, according to the plaintiffs — have reached a settlement. A key term of the settlement involves Hawaii achieving zero greenhouse gas emissions on all modes of transportation, including interisland air travel, by 2045.?

Notable Cases

Drummond v. Statewide Virtual Charter Schoolboard, Oklahoma Supreme Court Ruled that the state education board’s approval of a Catholic school’s application to be a public charter school violated the Oklahoma Constitution and the Oklahoma Charter Schools Act, which both say schools must be “nonsectarian,” as well as the federal Establishment Clause. // The New York Times

Independent School District No. 12 v. State of Oklahoma, Oklahoma Supreme Court Directed the state education board to dismiss enforcement proceedings it had brought against a district school library over books that allegedly violated new board rules against sexualized content. The court said state statutes give local school boards discretion over what books are in local school libraries. // Associated Press

The Reverend Traci Blackmon v. Missouri, St. Louis, Missouri, Circuit Court Ruled that the state’s abortion ban does not impose the religious beliefs of lawmakers on Missouri citizens. A group of religious leaders had asked for a permanent injunction against the state’s abortion ban, calling it an attack on the separation of church and state and reproductive freedom. // Associated Press

Legislature of the State of California v. Weber, California Supreme Court Removed from the ballot a proposed initiative that would have required voter approval for tax increases passed by the state legislature and voter approval by a two-thirds majority for local tax increases. The court said the initiative would “revise the Constitution without complying with the appropriate procedure.” // US News & World Report

State v. Luthi, Washington Supreme Court Decided that an in-court holding cell undermines the presumption of innocence, limits defendants’ ability to confer confidentially with counsel, and is contrary to the “formal dignity” of the courtroom in which defendants are treated respectfully. To satisfy due process, a trial court must engage in an inquiry before every hearing to determine if there are extraordinary circumstances justifying courtroom restraints. // Seattle Times

Lake v. Hobbs, Arizona Court of Appeals Affirmed a lower court’s dismissal of claims made by Kari Lake, the former Arizona gubernatorial candidate (and current U.S. Senate candidate) seeking to overturn the 2022 gubernatorial election, which she lost. Lake claimed, among other things, that there were errors in verifying mail-in ballots. // Associated Press

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.