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The Appropriate Legal Standard Required to Prevail in a Systemic Challenge to an Indigent Defense System

Mr. Hanlon argues that the constructive denial theory being litigated in several systemic indigent cases around the country fails to provide a principled analytical standard that can be met with a focused evidentiary showing using the kind of reliable data and analytics needed to certify a class and prevail on the merits in a pre-trial class action challenge to a state's indigent defense system.

 

Reprinted with permission of the Saint Louis University Law Journal © 2017
St. Louis University School of Law, St. Louis, Missouri.

NAPD General Counsel Stephen F. Hanlon has published an article entitled “The Appropriate Legal Standard Required to Prevail in a Systemic Challenge to an Indigent Defense System" in Vol. 61, No. 4, Summer, 2017, St. Louis University Law Journal, pp. 625-664.  

In this article, Mr. Hanlon argues that the constructive denial theory currently being litigated in several systemic indigent cases around the country fails to provide a principled analytical standard that can be met with a focused evidentiary showing using the kind of reliable data and analytics needed to certify a class and prevail on the merits in a pre-trial class action challenge to a state's indigent defense system.

Mr. Hanlon argues that in order to prevail on a pre-trial claim asserting systemic Sixth Amendment violations and seeking systemic prospective injunctive relief, plaintiffs must prove that there is a significant likelihood (or risk) of substantial and immediate injury to the class — that is, prejudice, at both plea and trial — because the defendants lack the capacity to provide to the class reasonably effective assistance of counsel under prevailing professional norms at all critical stages of the proceedings.  Stated more succinctly, his proposed test is: a significant risk of prejudice due to a systemic inability to perform.  

Mr. Hanlon finally argues that we now have the kind of reliable data and analytics to prove this claim with the ABA's workload studies that have been published in Missouri and Louisiana.

You can click here for a pdf of Volume 61; it is cross-posted on SLU LAW's website.

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NAPD News

December 15, 2018: Registration is now open for NAPD's Spring Events:
  • Executive Leadership Insitute (Frankfort, KY)
  • Train the Trainer (Frankfort, KY)
  • "We the Defenders" Investigators Conference (Biloxi, MS)
  • "We the Defenders" Social Workers/Sentencing AdvocatesConference (Biloxi, MS)
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October 30, 2018: NAPD releases a video about its achievements over the 5 years since forming in November in 2013. This films was coordinated by NAPD Steering Committee Member and San Francisco Public Defender Jeff Adachi and debuted at the Racial Justice Training and 5 Year Celebration in Baltimore, Maryland. You can watch the video HERE

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July 1, 2018: General Registration opens for the “WE THE DEFENDERS” TRAINING CONFERENCE,  November 26-29, 2018, Indianapolis, IN

You can watch a video about the event HERE 

Due to overwhelming demand, NAPD will again offer this comprehensive Investigator and Social Worker/Sentencing Advocate training experience! The program will include one track for Investigators and a separate track for Social Worker/Sentencing Advocates.  Hear from nationally recognized experts who will share their knowledge on a wide range of topics relevant to the work you do each and every day.  Network with other criminal defense practitioners from around the country and find your tribe. 
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January 23, 2018: In response to US Attorney General Jeff Session's reversal of prior policy on the imposition of fines and fees for criminal defendants, NAPD submitted the following letter on behalf of the public defender community. You can read the letter HERE
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