So Sue Me: How the Justice Department Can Protect Children by Suing Indigent Defenders

Abstract

As new leadership takes over at the federal Department of Justice, this Essay argues that the Department of Justice should use its civil rights enforcement authority to improve the quality of legal representation for children by directly suing indigent defense systems—a step the agency has never before taken.In jurisdictions across the country, juvenile indigent defense has long been a constitutional and moral failure, with profoundly negative implications for the lives of vulnerable children. In some places, not much has changed since the United States Supreme Court first recognized a right to counsel for kids in 1967.The Obama-era Department of Justice took a first step towards changing the unacceptable status quo. Three times during the Obama Administration, the Department invoked its enforcement powers under 34 U.S.C. § 12601 to investigate juvenile justice systems. As part of those efforts, the Department of Justice attempted to negotiate resolutions improving indigent defense for children.This Essay is the first to examine all three of those agency interventions—in Memphis, St. Louis, and Meridian, Mississippi—and to suggest lessons for a resurgent Civil Rights Division under the Biden Administration. The three Obama-era investigations highlighted the ways in which many of the problems plaguing juvenile defense are not just exogenous and structural (like funding and independence from the judiciary) but also endogenous—stemming from organizational problems within indigent defense systems, like lack of training and supervision. The Department’s interventions also showed how hard it is to fix indigent defense problems using § 12601 without directly targeting the indigent defense system with investigation and litigation. This Essay argues that the Department of Justice can accomplish real and rapid change by taking a more focused and aggressive approach and directly suing indigent defenders.