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H.R. 1408: EQUAL Defense Act of 2021


The text of the bill below is as of Feb 26, 2021 (Introduced).


I

117th CONGRESS

1st Session

H. R. 1408

IN THE HOUSE OF REPRESENTATIVES

February 26, 2021

(for himself, Mrs. Demings, Ms. Dean, Ms. Jackson Lee, Ms. Meng, and Mr. Scott of Virginia) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To incentivize States and localities to improve access to justice, and for other purposes.

1.

Short title

This Act may be cited as the Ensuring Quality Access to Legal Defense Act of 2021 or the EQUAL Defense Act of 2021.

2.

Purpose

The purpose of this Act is—

(1)

to protect the rights of defendants in criminal cases to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, including the right to counsel in State criminal trials, as articulated by the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335 (1963);

(2)

to collect data related to public defense in order to facilitate the development of evidence-based workload limits, and for other purposes; and

(3)

to ensure that public defender compensation reflects the constitutional imperative of the work and adequately incentivizes attorneys at all levels to pursue a career in public defense.

3.

Definitions

In this Act, except as otherwise provided in section 6:

(1)

Applicable court

The term applicable court, with respect to an eligible entity that is—

(A)

a State or unit of local government, means—

(i)

a court of the eligible entity; and

(ii)

a court of a unit of local government within the eligible entity; and

(B)

a Tribal organization, means a court of the Indian Tribe.

(2)

Applicable public defender's office

The term applicable public defender's office, with respect to an eligible entity that is—

(A)

a public defender's office, means the eligible entity;

(B)

a State or unit of local government, means—

(i)

the public defender's office of the eligible entity; and

(ii)

a public defender's office of a unit of local government within the eligible entity; and

(C)

a Tribal organization, means the public defender's office of the Tribal organization.

(3)

Basis of compensation

The term basis of compensation means the classification of the compensation of an employee into one of the following categories:

(A)

Hourly.

(B)

Flat rate.

(C)

Per case.

(D)

Salary.

(4)

Case

(A)

In general

The term case includes all charges involved in a single incident of alleged criminal or delinquent conduct.

(B)

Multiple defendants

If a charging document states that multiple defendants were involved in a single incident of alleged criminal or delinquent conduct, each defendant shall be counted as a separate case.

(5)

Case type

(A)

In general

The term case type means the classification of a client’s case into one of the following categories, as defined under State law:

(i)

Juvenile.

(ii)

Misdemeanor.

(iii)

Felony.

(iv)

Life without parole.

(v)

Capital or death penalty.

(B)

Multiple charges

If a case involves multiple charges, the case type shall be determined according to the dominant charge.

(6)

Chief prosecutor

The term chief prosecutor, with respect to—

(A)

a State, means the attorney general of the State;

(B)

a unit of local government, means the district attorney of the unit of local government; and

(C)

a Tribal organization, means the lead prosecutor of the Tribal organization.

(7)

Chief public defender

The term chief public defender, with respect to a State, unit of local government, or Tribal organization, means the head of the public defender's office of the State, unit of local government, or Tribal organization, respectively.

(8)

Corresponding prosecutor's office

The term corresponding prosecutor's office, with respect to a public defender's office, means the prosecutorial unit that appears adverse to the public defender's office in criminal proceedings.

(9)

Covered grant

The term covered grant means a grant awarded under section 4.

(10)

Dominant charge

The term dominant charge, with respect to a case that involves multiple charges, means the charge that carries the most severe or lengthy maximum penalty.

(11)

Eligible entity

The term eligible entity means a State, unit of local government, Tribal organization, or public defender's office that, as of the date of enactment of this Act and without regard to the deadlines under section 4(b)—

(A)

has not developed and implemented a data collection process that meets the requirements under paragraph (1) of that section;

(B)

has not developed workload limits that meet the requirements under paragraph (2) of that section, or has developed such limits but is not in compliance with the limits; or

(C)

does not meet the compensation requirements under paragraph (3) of that section.

(12)

Full-time

The term full-time, with respect to an employee of a prosecutor's office or public defender's office, means an employee who works not less than 40 hours per week for that office.

(13)

Peripheral charge

The term peripheral charge, with respect to a case that involves multiple charges, means any charge that is not the dominant charge.

(14)

Prosecutor

The term prosecutor

(A)

has the meaning given the term in section 3001(b) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10671(b)); and

(B)

includes a full-time employee of a Tribal organization who—

(i)

is continually licensed to practice law; and

(ii)

carries out activities equivalent to those of a prosecutor referred to in subparagraph (A).

(15)

Prosecutor's office; public defender's office

The terms prosecutor's office and public defender's office mean an agency or office of a State, unit of local government, or Tribal organization that employs prosecutors or public defenders, respectively.

(16)

Public defender

The term public defender

(A)

has the meaning given the term in section 3001(b) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10671(b)); and

(B)

includes an attorney employed by a Tribal organization who—

(i)

is continually licensed to practice law; and

(ii)

carries out activities equivalent to those of a public defender referred to in subparagraph (A).

(17)

Staff attorney

The term staff attorney, with respect to a prosecutor's office or public defender's office, means a prosecutor or public defender who is not the chief prosecutor or chief public defender, respectively.

(18)

State

The term State has the meaning given the term in section 901 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10251).

(19)

Tribal organization

The term Tribal organization has the meaning given the term tribal organization in section 4(l) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304(l)).

(20)

Unit of local government

The term unit of local government has the meaning given the term in section 901 of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10251).

4.

Public defense grant program

(a)

Grant authority

(1)

In general

(A)

Initial grants

During the first 5 fiscal years beginning after the date of enactment of this Act, the Attorney General shall award a grant, to be used for public defense, to any eligible entity that commits to satisfying the requirements under subsection (b) and section 5.

(B)

Continuing grants

During the sixth fiscal year beginning after the date of enactment of this Act, and each fiscal year thereafter, the Attorney General shall award a grant to any eligible entity that—

(i)

commits to satisfying the requirements under section 5;

(ii)

certifies that the eligible entity is in compliance with—

(I)

the workload limits developed by the eligible entity under subsection (b)(2) of this section; and

(II)

the requirements under subsection (b)(3) of this section; and

(iii)

commits to using the grant funds for public defense.

(2)

Amount

In applying for a grant under paragraph (1), an eligible entity shall request a grant amount that takes into account—

(A)

any technology and training required to meet the requirements under subsection (b)(1); and

(B)

the size of the justice system—

(i)

that the entity administers or in which the entity participates, as applicable, relative to the size of other justice systems in—

(I)

the United States, if the entity is a State or a public defender's office of a State; or

(II)

the State in which the entity is located, if the entity is a unit of local government or a public defender's office of a unit of local government; or

(ii)

of the Indian Tribe, if the entity is a Tribal organization or a public defender's office of a Tribal organization.

(b)

Requirements

The requirements for an eligible entity under this subsection are as follows:

(1)

Data collection

(A)

Process

During the first fiscal year for which the eligible entity receives a covered grant, the eligible entity shall develop and implement a process for collecting the following data for full-time attorneys employed by each applicable public defender's office during the fiscal year:

(i)

The mean and median number of hours per month worked per attorney.

(ii)

The mean and median percentage of hours per month spent with clients per attorney, excluding court appearances.

(iii)

The mean and median percentage of hours per month spent in court proceedings per attorney.

(iv)

The mean and median percentage of hours spent per month by an attorney on—

(I)

investigation;

(II)

research;

(III)

writing; and

(IV)

preparation.

(v)

The amount of attorney turnover, broken down by the level of experience and length of employment of the attorney.

(vi)

The number of open cases as of the last day of the fiscal year, broken down by—

(I)

case type, including by—

(aa)

the dominant charge; and

(bb)

each peripheral charge;

(II)

the attorney, who shall be identified using an anonymized unique identifier;

(III)

the date on which the attorney was appointed to the case; and

(IV)

the date on which the attorney first met with the client.

(vii)

The number of cases closed during the fiscal year, broken down by—

(I)

case type, including by—

(aa)

the dominant charge; and

(bb)

each peripheral charge;

(II)

the attorney, who shall be identified using an anonymized unique identifier;

(III)

the date on which the case was referred to the public defender's office;

(IV)

the date on which the attorney was appointed to the case; and

(V)

the date on which the case was closed.

(B)

Collection and submission requirement

For the second fiscal year, and each subsequent fiscal year, for which an eligible entity receives a covered grant, the eligible entity shall—

(i)

collect the data described in subparagraph (A) with respect to that fiscal year; and

(ii)

submit the data to the Attorney General.

(2)

Workload limits

(A)

Development of workload limits

During the second fiscal year for which the eligible entity receives a covered grant, the eligible entity shall develop workload limits, based on the data collected under paragraph (1), that provide each full-time public defender employed by an applicable public defender's office with sufficient time to provide—

(i)

reasonably effective assistance of counsel pursuant to prevailing professional norms; and

(ii)

competent representation pursuant to applicable rules of professional responsibility.

(B)

Periodic updates

If the eligible entity receives covered grants under subsection (a)(1)(B), the eligible entity shall review and, as necessary, update the limits developed under subparagraph (A) of this paragraph not less frequently than once every 10 fiscal years.

(3)

Public defender compensation

During the sixth fiscal year, and each subsequent fiscal year, for which the eligible entity receives a covered grant, the eligible entity shall satisfy the following requirements with respect to employees of each applicable public defender's office (or, in the case of subparagraph (D), with respect to each private attorney appointed by an applicable court):

(A)

The rate and basis of compensation of the chief public defender shall be equivalent to the rate and basis of compensation of the corresponding chief prosecutor.

(B)

The rate and basis of compensation of an entry-level full-time staff attorney shall be equivalent to the rate and basis of compensation of an entry-level full-time staff attorney employed by the corresponding prosecutor's office.

(C)

The rate and basis of compensation of a non-entry-level full-time staff attorney shall be equivalent to the greater of—

(i)

the rate and basis of compensation of a full-time staff attorney employed by the corresponding prosecutor's office who has the same number of years of experience working as a criminal attorney; or

(ii)

the rate and basis of compensation of a full-time staff attorney employed by the corresponding prosecutor's office who has an equivalent supervisory or managerial role.

(D)

In the case of an eligible entity that is not a public defender's office, the rate of compensation of a private attorney appointed by an applicable court to represent a defendant shall be equivalent to the rate of compensation of an attorney appointed under section 3006A of title 18, United States Code, by the United States district court for the Federal judicial district in which the applicable court is located, for the same or a similar type of case.

(E)

The rate and basis of compensation of a full-time investigator shall be equivalent to the rate and basis of compensation of a full-time investigator employed by the corresponding prosecutor's office who has the same number of years of experience working as an investigator.

(F)

The rate and basis of compensation of a full-time paralegal shall be equivalent to the rate and basis of compensation of a full-time paralegal employed by the corresponding prosecutor's office who has the same number of years of experience working as a paralegal.

(c)

Authorization of appropriations

There are authorized to be appropriated to the Attorney General to carry out this section—

(1)

$250,000,000 for each of the first 5 fiscal years beginning after the date of enactment of this Act; and

(2)

such sums as may be necessary for each fiscal year thereafter.

5.

Progress reports; certifications

(a)

Progress reports

For each of the first 5 fiscal years for which a State or Tribal organization receives a covered grant, the State or Tribal organization shall submit a report to the Attorney General that—

(1)

documents the progress of the State or Tribal organization in meeting the requirements under section 4(b)(3);

(2)

provides a formal accounting of total amounts expended on public defense during the fiscal year by the—

(A)

State, including each unit of local government in the State; or

(B)

Tribal organization;

(3)

provides a formal accounting of total amounts expended on prosecution during the fiscal year by the—

(A)

State, including each unit of local government in the State; or

(B)

Tribal organization; and

(4)

documents the progress of the State, including each unit of local government in the State, or Tribal organization in achieving overall resource parity between prosecution and public defense.

(b)

Certifications

(1)

Data collection process

For the first fiscal year for which an eligible entity receives a covered grant, the eligible entity shall submit to the Attorney General a certification that the eligible entity has developed and implemented a data collection process in accordance with section 4(b)(1)(A).

(2)

Workload limits

(A)

Compliance

Subject to subparagraph (B), for the third fiscal year for which an eligible entity receives a covered grant, and each fiscal year thereafter, the eligible entity shall submit to the Attorney General a certification that the eligible entity has complied with the workload limits developed under section 4(b)(2).

(B)

Requirement

If an eligible entity is unable to certify under subparagraph (A) that the eligible entity has complied with the workload limits developed under section 4(b)(2)—

(i)

the eligible entity shall report to the Attorney General the number of additional public defenders and the amount of additional funding needed to ensure compliance with the limits developed under that section; and

(ii)

the Attorney General shall factor the information provided under clause (i) into the amount of the covered grant awarded to the eligible entity for the following fiscal year.

(3)

Compensation parity

For the sixth fiscal year, and each subsequent fiscal year, for which an eligible entity receives a covered grant, the eligible entity shall submit to the Attorney General a certification that the eligible entity is in compliance with section 4(b)(3).

6.

Requirements for States receiving Byrne JAG funds

(a)

Data collection

(1)

In general

For any fiscal year beginning after the date of enactment of this Act, a State that receives funds under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10501 et seq.) shall submit to the Attorney General data on the following with respect to criminal cases heard by a court of the State or of a unit of local government in the State during that fiscal year:

(A)

The number of cases for which a defendant waived his or her right to counsel, and the number of charges in each case, broken down by race, ethnicity, and gender of the defendant.

(B)

The number of cases for which a defendant was represented in court by counsel who was publicly appointed, broken down by—

(i)

public defender, court-appointed private attorney, or contract attorney, and the number of charges in each case; and

(ii)

race, ethnicity, and gender of the defendant.

(C)

The number of cases for which a defendant was represented in court by counsel who was not publicly appointed, and the number of charges in each case, broken down by race, ethnicity, and gender of the defendant.

(2)

Applicable criminal offenses

A State shall submit data under paragraph (1) with respect to—

(A)

criminal offenses for which a term of imprisonment of more than 1 year may be imposed;

(B)

criminal offenses for which a term of imprisonment of 1 year or less may be imposed, including misdemeanors, traffic violations, and violations of municipal ordinances; and

(C)

acts of juvenile delinquency or juvenile status offenses for which any term of detention may be imposed.

(3)

Withholding of funds

If a State does not comply with paragraph (1) or (2) for a fiscal year, the Attorney General shall withhold from the State 20 percent of the funds that would otherwise be allocated to the State for the following fiscal year under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10501 et seq.).

7.

Funding to train public defenders

(a)

Definition

In this section, the term eligible entity means an entity that—

(1)

is—

(A)

an organization—

(i)

described in paragraph (3) or (6) of section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation under section 501(a) of such Code; or

(ii)

funded by a State or unit of local government; or

(B)

a State, unit of local government, Indian Tribal government, or political subdivision of an Indian Tribe; and

(2)

has a comprehensive educational program specific to public defenders that offers—

(A)

ongoing training and support; and

(B)

programming that includes—

(i)

skills training, including pretrial practice, negotiation skills, and trial skills;

(ii)

client-centered values;

(iii)

implicit bias training;

(iv)

leadership development; and

(v)

ongoing support to reinforce the training curriculum.

(b)

Grants

The Attorney General shall award grants to eligible organizations to be used to train public defenders, court-appointed private attorneys, and contract attorneys.

(c)

Authorization of appropriations

There are authorized to be appropriated to the Attorney General to carry out this section $5,000,000 for each of the first 5 fiscal years beginning after the date of enactment of this Act.

8.

Enhancement of student loan repayment program

(a)

Reauthorization

Section 3001(j) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10671(j)) is amended—

(1)

by striking this section $25,000,000 and inserting the following:

this section—

(1)

$25,000,000

; and

(2)

by striking the period at the end and inserting the following:

; and

(2)

$75,000,000 for each of fiscal years 2022 through 2025.

.

(b)

Increasing limits on repayment amount

Section 3001(d)(3)(A) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10671(d)(3)(A)) is amended—

(1)

in clause (i), by striking $10,000 and inserting $35,000; and

(2)

in clause (ii), by striking $60,000 and inserting $200,000.