H. R. 3811
IN THE HOUSE OF REPRESENTATIVES
September 21, 2017
Mr. Deutch (for himself and Mr. Conyers) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To establish the National Center for the Right to Counsel.
This Act may be cited as the
National Center for the Right to Counsel Act.
Congress finds the following:
The Sixth Amendment to the Constitution of the United States provides that
In all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defense..
In Gideon v. Wainwright, 372 U.S. 335 (1963), the United States Supreme Court held that the States were required to provide counsel for indigent defendants in all felony cases.
In Argersinger v. Hamlin, 407 U.S. 25 (1972), the United States Supreme Court held that indigent defendants are entitled to court-appointed counsel in any case that leads to actual imprisonment.
For more than 50 years, the States and local governments have been struggling to satisfy this mandate.
In this Act:
The term Board means the Board of Directors of the National Center for the Right to Counsel.
The term Center means the National Center for the Right to Counsel established in this Act.
The term indigent defendant means a defendant in a criminal case who is unable to afford a reasonable attorney’s fee in the case against such person.
The term public defense services means legal assistance provided to an indigent defendant in a criminal case against such person.
The term public defense system means a system that provides public defense services, and includes a system that is run by a State or local unit of government, and a system that is run by a private entity or individual that provides such services by reason of a contract with a State or local unit of government.
The term State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.
Establishment of Center
There is established in the District of Columbia a private nonmembership nonprofit corporation, which shall be known as the National Center for the Right to Counsel, for the purpose of—
providing financial support to supplement, not supplant, funding for public defense systems; and
providing financial and substantive support for training programs that aim to improve the delivery of legal services to indigent defendants.
Principal office; agent for service of process
The Center shall maintain its principal office in the District of Columbia and shall maintain therein a designated agent to accept service of process for the Center. Notice to or service upon the agent shall be deemed notice to or service upon the Center.
Status of Center under tax laws
The Center shall be eligible to be treated as an organization described in section 170(c)(2)(B) of the Internal Revenue Code of 1986 and as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 which is exempt from taxation under section 501(a) of such Code. If such treatments are conferred in accordance with the provisions of such Code, the Center shall be subject to all provisions of such Code relevant to the conduct of organizations exempt from taxation.
Board of directors established
The Center shall have a Board of Directors consisting of 9 voting members appointed by the President, by and with the advice and consent of the Senate. The President shall make such nominations not later than 60 days after the date of the enactment of this Act.
Qualifications of members
The members shall be qualified as follows:
A majority of the members shall be members of the bar of the highest court of any State.
One member shall have been an indigent defendant who received public defense services from a public defense system.
The members, except for the member described in paragraph (2), shall have—
significant experience in the legal defense of criminal cases;
demonstrated a commitment to quality indigent defense representation; or
demonstrated a commitment to working with and advocating for the population served by the Center.
The term of a member shall be 5 years, except as provided in paragraphs (2) and (4).
As designated by the President at the time of appointment, of the members first appointed—
3 shall be appointed for terms of 2 years;
3 shall be appointed for terms of 3 years; and
3 shall be appointed for terms of 4 years.
No member may be reappointed to more than two consecutive terms immediately following such member’s initial term.
Any member appointed to fill a vacancy occurring before the expiration of the term for which the member’s predecessor was appointed shall be appointed only for the remainder of that term. A member may serve after the expiration of that member’s term until a successor has taken office. A vacancy in the Board shall be filled in the manner in which the original appointment was made.
Removal for cause
A member of the Board may be removed by the President for malfeasance in office, for persistent neglect of or inability to discharge duties, or for offenses involving moral turpitude, and for no other cause.
Members not officers or employees of a government
The members of the Board shall not, by reason of such membership, be deemed officers or employees of the Federal Government, a State government, local government, or any law enforcement agency.
The President shall select a chairman from among the initial members to serve for a period of two years. Thereafter, the chairman shall be elected annually by the members.
Conflict of interest
No member of the Board, member of a State advisory council, or employee of a regional backup service center may participate in any decision, action, or recommendation with respect to any matter which directly benefits such member or employee or pertains specifically to any firm or organization with which such member or employee is then associated or has been associated within a period of two years.
Disclosure and recusal
In the event of a conflict of interest described in paragraph (1), the member of the Board, member of a State advisory council, or employee of a regional backup service center who has a conflict shall disclose the interest that the member or employee has in the matter, subject to applicable attorney-client privilege, to the Board, and—
in the case of a member of a State advisory council, to that council; or
in the case of an employee of a regional backup service center, to that center.
The Center shall adopt a written policy to ensure that paragraphs (1) and (2) are carried out.
State advisory councils
In general; appointment of members
Each State shall have a State advisory council composed of 9 members, appointed not later than 90 days after the first meeting of the Board as follows:
3 members appointed by the Chief Justice of the highest court of the State.
3 members appointed by the United States Senators for the State, or in the case of a State that does not have Senators, appointed by the Member of the United States House of Representatives for that State.
3 members appointed by the chief executive of the State.
Failure to appoint
If 90 days have elapsed without such an advisory council appointed pursuant to paragraph (1), the Board is authorized to appoint such a council, or such remaining unappointed members of the council, from among the individuals recommended by the State bar association.
Qualifications of members
The members of the advisory council shall be subject to the qualifications under subsection (b), and shall be made from among recommendations made by the State bar association, in collaboration with the Access to Justice Initiative of the Department of Justice.
The term of a member of a State advisory council shall be 4 years. A member may serve after the expiration of that member’s term until a successor member takes office. A vacancy on the council shall be filled in the manner described in paragraph (2).
Each State advisory council shall—
monitor, receive, and investigate complaints regarding the compliance of public defense systems in that State that receive funding under this Act with the provisions of this Act and applicable rules, regulations, and guidelines promulgated pursuant to this Act;
notify the Center of any apparent violation of the provisions of this Act and applicable rules, regulations, and guidelines promulgated pursuant to this Act, and furnish a copy of the notification to any recipient affected thereby, and the Center shall allow such recipient a reasonable time (but in no case less than 30 days) to reply to any allegation contained in the notification;
collect information and data on the delivery of public defense services in that State; and
facilitate the sharing of information between public defense systems in that State.
Each State advisory council may appoint additional personnel as it considers appropriate in order to carry out paragraph (5)(A).
Beginning on the date that is one year after a State advisory council has its first meeting, and annually thereafter, a State advisory council shall submit to the Center a report that includes—
an assessment on the provision of public defense services in that State; and
recommendations on actions that the Center could take to—
enhance compliance of public defense systems in that State that receive funding under this Act with the provisions of this Act and applicable rules, regulations, and guidelines promulgated pursuant to this Act; and
improve the delivery of public defense services in that State.
Open meetings; applicability of Government in the Sunshine provisions
All meetings of the Board, of any executive committee of the Board, and of any advisory council established in connection with this Act shall be open and shall be subject to the requirements and provisions of section 552b of title 5, United States Code (relating to open meetings).
The Board shall meet at least 4 times during each calendar year.
Officers and employees
Executive Director and other officers
The Board shall appoint the Executive Director of the Center, who shall be a member of the bar of the highest court of a State and shall be a nonvoting ex officio member of the Board, and such other officers as the Board determines necessary. No officer of the Center may receive any salary or other compensation for services from any source other than the Center during his period of employment by the Center, except as authorized by the Board. All officers shall serve at the pleasure of the Board.
Appointment and removal of employees
The Executive Director of the Center, subject to general policies established by the Board, may appoint and remove such employees of the Center as the Executive Director determines necessary to carry out the purposes of the Center.
No political test or political qualification shall be used in selecting, appointing, promoting, or taking any other personnel action with respect to any officer, agent, or employee of the Center or of any recipient, or in selecting or monitoring any grantee, contractor, or person or entity receiving financial assistance under this title.
Officers and employees of the Center shall be compensated at rates determined by the Board, but not in excess of the rate of level V of the Executive Schedule specified in section 5316 of title 5, United States Code.
Officers and employees not deemed officers and employees of Federal Government
Except as otherwise specifically provided in this Act, officers and employees of the Center shall not be considered officers or employees, and the Center shall not be considered a department, agency, or instrumentality, of the Federal Government.
Officers and employees of the Center shall be considered officers and employees of the Federal Government for purposes of the following provisions of title 5, United States Code: subchapter I of chapter 81 (relating to compensation for work injuries); chapter 83 (relating to civil service retirement); chapter 87 (relating to life insurance); and chapter 89 (relating to health insurance). The Center shall make contributions at the same rates applicable to agencies of the Federal Government under the provisions referred to in this subsection.
Freedom of Information
The Center and its officers and employees shall be subject to the provisions of section 552 of title 5, United States Code (relating to freedom of information).
Office of Management and Budget
Nothing in this Act shall be construed as limiting the authority of the Office of Management and Budget to review and submit comments upon the Center's annual budget request at the time it is transmitted to the Congress.
Powers, duties, and limitations
Powers of nonprofit corporation
To the extent consistent with the provisions of this Act, the Center shall exercise the powers conferred upon a nonprofit corporation by the District of Columbia Nonprofit Corporation Act (except for section 1005(o) of title 29 of the District of Columbia Code).
Grant and contract power
The Center is authorized—
for the purpose of providing public defense services to indigent defendants, to provide financial assistance to and to make grants and contracts with individuals, partnerships, firms, corporations, nonprofit organizations, public defense systems, State governments, and local governments; and
to make such other grants and contracts as are necessary to carry out the purposes and provisions of this Act.
Power To accept money and property
The Center is authorized to accept, in the name of the Center, and employ or dispose of in furtherance of the purposes of this Act, any money or property, real, personal, or mixed, tangible or intangible, received by gift, devise, bequest, or otherwise.
Other powers relating to the provision of public defense services
The Center is authorized to undertake directly, or by grant or contract, the following activities relating to the delivery of public defense services—
training and technical assistance; and
to serve as a clearinghouse for information.
The Center shall have authority to ensure the compliance of recipients and their employees with the provisions of this Act and the rules, regulations, and guidelines promulgated pursuant to this Act, and to terminate, after a hearing in accordance with section 11, financial support to a recipient which fails to comply.
If a recipient finds that any of its employees has violated or caused the recipient to violate the provisions of this Act, or the rules, regulations, and guidelines promulgated pursuant to this Act, the recipient shall take appropriate remedial or disciplinary action in accordance with the types of procedures prescribed in the provisions of section 11.
Interference with professional responsibilities of attorneys prohibited
The Center shall not, under any provision of this Act, interfere with any attorney in carrying out such attorney’s professional responsibilities to such attorney’s client as established in the American Bar Association Model Rules of Professional Conduct or abrogate as to attorneys in programs assisted under this Act the authority of a State of other jurisdiction to enforce the standards of professional responsibility generally applicable to attorneys in such jurisdiction. The Center shall ensure that activities under this Act are carried out in a manner consistent with attorneys’ professional responsibilities.
Bar member required
No attorney shall receive any compensation, either directly or indirectly, for the provision of public defense services under this Act unless such attorney is admitted or otherwise authorized by law, rule, or regulation to practice law or provide such assistance in the jurisdiction where such services are initiated.
Languages other than English
In areas where significant numbers of indigent defendants speak a language other than English as their principal language, the Center shall, to the extent feasible, provide that their principal language is used in the provision of public defense services to such defendants under this Act.
The Center shall have no power to issue any shares of stock, or to declare or pay any dividends.
No part of the income or assets of the Center shall inure to the benefit of any director, officer, or employee, except as reasonable compensation for services or reimbursement for expenses.
Political activities of Center employees and staff attorneys
Employees of the Center or of recipients shall not at any time intentionally identify the Center or the recipient with any partisan or nonpartisan political activity associated with a political party or association, or the campaign of any candidate for public or party office.
Employees of the Center and staff attorneys shall be deemed to be State or local employees for purposes of chapter 15 of title 5, except that no staff attorney may be a candidate in a partisan political election.
Grants and Contracts
Center Executive Director authorized To make grants and enter into contracts
The Executive Director of the Center is authorized to make grants and enter into contracts under this Act.
The Center shall make grants to State or local governments and public defense systems that supplement, not supplant, other available resources for the purpose of improving or establishing public defense systems.
The term of a grant under this section shall be 2 or 3 years, as determined by the Center.
A grant recipient under this Act may renew such grant by submitting an application to the Executive Director of the Center at such time, in such manner, and containing such information as the Executive Director may reasonably require, including an assessment of such recipient’s compliance with or progress toward achieving the quality standards that the Center develops under subsection (e).
The Center shall monitor and evaluate and provide for independent evaluations of programs supported in whole or in part under this Act to ensure that the provisions of this Act and the bylaws of the Center and applicable rules, regulations, and guidelines promulgated pursuant to this Act are carried out.
Not later than 30 days prior to the approval of any grant application or prior to entering into a contract or prior to the initiation of any other project, the Center shall announce publicly, and shall notify the Governor, the State bar association of any State, and the principal local bar associations (if there be any) of any community, where public defense services will thereby be initiated, of such grant, contract, or project. Notification shall include a reasonable description of the grant application or proposed contract or project and request comments and recommendations.
The Center shall develop and make publicly available standards for the quality of public defense services, which the Center shall use to assess the success of a recipient in improving a public defense system.
The Center shall establish and maintain a database that shall be publicly available online, and shall include the contact information for all public defense systems in every State.
Regional backup service
The Center shall establish regional backup service centers to assist public defense systems.
The services provided at such centers shall include—
providing attorneys engaged in public defense services with access to qualified investigators and sentencing mitigation specialists;
providing information to public defense systems about grants that are available to them, and providing assistance and guidance to public defense systems that apply for such grants; and
other services that the Center determines are appropriate.
The Center shall determine the locations of the regional backup service centers, and the geographic region that each center is responsible for serving.
With respect to grants or contracts in connection with the provision of public defense services under this Act, the following shall apply:
The Center shall ensure the maintenance of the highest quality of service and professional standards, the preservation of attorney-client relationships, and the protection of the integrity of the adversary process from any impairment in furnishing public defense services.
Economical and effective delivery of public defense services
The Center shall ensure that grants and contracts are made so as to provide the most economical and effective delivery of public defense services to persons in both urban and rural areas.
Outside practice of law prohibited
The Center shall ensure that attorneys employed full time in public defense services activities supported in major part by the Center refrain from—
any compensated outside practice of law; and
any uncompensated outside practice of law except as authorized in guidelines promulgate by the Center.
Continuation of funding
The Center may provide interim funding necessary to maintain current level of activities for any grantee, contractor, or person or entity receiving financial assistance under this Act that files with the Center a timely application for refunding until—
the application for refunding has been approved and funds pursuant thereto received; or
the application for refunding has been denied in accordance with section 11.
Records and reports
Authority To require reports
The Center is authorized to require such reports as it deems necessary from any grantee, contractor, person, or entity receiving financial assistance under this Act regarding activities carried out pursuant to this Act.
Authority To require recordkeeping; access to records
The Center is authorized to prescribe the keeping of records with respect to funds provided by grant or contract and shall have access to such records at all reasonable times for the purpose of insuring compliance with the grant or contract or the terms and conditions upon which financial assistance was provided.
Annual report to President and Congress
The Center shall publish an annual report which shall be filed by the Center with the President and the Congress. Such report shall include—
a description of the state of the provision of public defense services throughout the United States and any recommendations for improving the state of such services;
a description of the services that the Center provides and any recommendations for improving the quality of such services; and
a copy of each report from a State advisory council that the Center has received for that year under section 5(g)(6).
Copies and retention of reports
Copies of all reports pertinent to the evaluation, inspection, or monitoring of any grantee, contractor, or person or entity receiving financial assistance under this Act shall be submitted on a timely basis to such grantee, contractor, or person or entity, and shall be maintained in the principal office of the Center for a period of at least 5 years subsequent to such evaluation, inspection, or monitoring. Such reports shall be available for public inspection during regular business hours, and copies shall be furnished, upon request, to interested parties upon payment of such reasonable fees as the Center may establish.
Publication in Federal Register of rules, regulations, guidelines, and instructions
The Center shall afford notice and reasonable opportunity for comment to interested parties prior to issuing rules, regulations, and guidelines, and it shall publish in the Federal Register at least 30 days prior to their effective date all its rules, regulations, guidelines, and instructions.
The accounts of the Center shall be audited annually. Such audits shall be conducted in accordance with generally accepted auditing standards by independent certified public accountants who are certified by a regulatory authority of the jurisdiction in which the audit is undertaken.
Availability of records
The audits shall be conducted at the place or places where the accounts of the Center are normally kept. All books, accounts, financial records, reports, files, and other papers or property belonging to or in use by the Center and necessary to facilitate the audits shall be made available to the person or persons conducting the audits, and full facilities for verifying transactions with the balances and securities held by depositories, fiscal agents, and custodians shall be afforded to any such person.
The report of the annual audit shall be filed with the Government Accountability Office and shall be available for public inspection during business hours at the principal office of the Center.
Audit by Government Accountability Office
In addition to the annual audit, the financial transactions of the Center for any fiscal year during which Federal funds are available to finance any portion of its operations may be audited by the Government Accountability Office in accordance with such rules and regulations as may be prescribed by the Comptroller General of the United States.
Availability of Records
Any such audit shall be conducted at the place or places where accounts of the Center are normally kept. The representatives of the Government Accountability Office shall have access to all books, accounts, financial records, reports, files, and other papers or property belonging to or in use by the Center and necessary to facilitate the audit, and full facilities for verifying transactions with the balances and securities held by depositories, fiscal agents, and custodians shall be afforded to such representatives. All such books, accounts, financial records, reports, files, and other papers or property of the Center shall remain in the possession and custody of the Center throughout the period beginning on the date such possession or custody commences and ending three years after such date, but the General Accountability Office may require the retention of such books, accounts, financial records, reports, files, papers, or property for a longer period under section 3523(c) of title 31, United States Code.
A report of such audit shall be made by the Comptroller General to the Congress and to the President, together with such recommendations with respect thereto as the Comptroller General shall deem advisable.
Notwithstanding the provisions of this section or of section 9, neither the Center nor the Comptroller General shall have access to any reports or records subject to the attorney-client privilege.
The Center shall prescribe procedures that ensure that financial assistance under this Act shall not be terminated (except that funding may be temporarily suspended during an interim period during the processing and consideration of an application for refunding), and an application for refunding shall not be denied, unless the grantee, contractor, or person or entity receiving financial assistance under this Act has been afforded reasonable notice and opportunity for a timely, full, and fair hearing, and when requested, such hearing shall be conducted by an independent hearing examiner. Such hearing shall be held prior to any final decision by the Center to terminate financial assistance or suspend or deny funding. Hearing examiners shall be appointed by the Center in accordance with procedures established in regulations promulgated by the Center.
The President may direct that appropriate support functions of the Federal Government may be made available to the Center in carrying out its activities under this Act, to the extent not inconsistent with other applicable law.
On the date that is 4 years after the date of the enactment of this Act, the Comptroller General shall submit to Congress a study on—
the affect that the Center has had on—
the provision of public defense services; and
the cost of the criminal justice system; and
the provision and the cost of providing public defense services for jurisdictions that do not receive assistance from the Center.
Section 506 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3756) is amended by inserting at the end the following:
Of the total amount made available to carry out this subpart for a fiscal year, the Attorney General shall reserve not less than 10 percent to carry out the National Center for the Right to Counsel Act.