I 118TH CONGRESS 1ST SESSION H. R. 3758 To incentivize States and localities to improve access to justice, and for other purposes. IN THE HOUSE OF REPRESENTATIVES MAY 31, 2023 Ms. BONAMICI (for herself, Mr. ARMSTRONG, Ms. CROCKETT, and Mrs. GONZA´LEZ-COLO´N) 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Ensuring Quality Ac- 4 cess to Legal Defense Act of 2023’’ or the ‘‘EQUAL De- 5 fense Act of 2023’’. 6 SEC. 2. PURPOSE. 7 The purpose of this Act is— 8 (1) to protect the rights of defendants in crimi- 9 nal cases to due process and a fair trial under the 10 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 3758 IH Fifth, Sixth, and Fourteenth Amendments to the 1 Constitution of the United States, including the 2 right to counsel in State criminal trials, as articu- 3 lated by the United States Supreme Court in Gideon 4 v. Wainwright, 372 U.S. 335 (1963); 5 (2) to collect data related to public defense in 6 order to facilitate the development of evidence-based 7 workload limits, and for other purposes; and 8 (3) to ensure that public defender compensation 9 reflects the constitutional imperative of the work and 10 adequately incentivizes attorneys at all levels to pur- 11 sue a career in public defense. 12 SEC. 3. DEFINITIONS. 13 In this Act, except as otherwise provided in section 14 6: 15 (1) APPLICABLE COURT.—The term ‘‘applicable 16 court’’, with respect to an eligible entity that is— 17 (A) a State or unit of local government, 18 means— 19 (i) a court of the eligible entity; and 20 (ii) a court of a unit of local govern- 21 ment within the eligible entity; and 22 (B) a Tribal organization, means a court 23 of the Indian Tribe. 24 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 3758 IH (2) APPLICABLE PUBLIC DEFENDER’S OF- 1 FICE.—The term ‘‘applicable public defender’s of- 2 fice’’, with respect to an eligible entity that is— 3 (A) a public defender’s office, means the 4 eligible entity; 5 (B) a State or unit of local government, 6 means— 7 (i) the public defender’s office of the 8 eligible entity; and 9 (ii) a public defender’s office of a unit 10 of local government within the eligible enti- 11 ty; and 12 (C) a Tribal organization, means the pub- 13 lic defender’s office of the Tribal organization. 14 (3) BASIS OF COMPENSATION.—The term 15 ‘‘basis of compensation’’ means the classification of 16 the compensation of an employee into one of the fol- 17 lowing categories: 18 (A) Hourly. 19 (B) Flat rate. 20 (C) Per case. 21 (D) Salary. 22 (4) CASE.— 23 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 3758 IH (A) IN GENERAL.—The term ‘‘case’’ in- 1 cludes all charges involved in a single incident 2 of alleged criminal or delinquent conduct. 3 (B) MULTIPLE DEFENDANTS.—If a charg- 4 ing document states that multiple defendants 5 were involved in a single incident of alleged 6 criminal or delinquent conduct, each defendant 7 shall be counted as a separate case. 8 (5) CASE TYPE.— 9 (A) IN GENERAL.—The term ‘‘case type’’ 10 means the classification of a client’s case into 11 one of the following categories, as defined under 12 State law: 13 (i) Juvenile. 14 (ii) Misdemeanor. 15 (iii) Felony. 16 (iv) Life without parole. 17 (v) Capital or death penalty. 18 (B) MULTIPLE CHARGES.—If a case in- 19 volves multiple charges, the case type shall be 20 determined according to the dominant charge. 21 (6) CHIEF PROSECUTOR.—The term ‘‘chief 22 prosecutor’’, with respect to— 23 (A) a State, means the attorney general of 24 the State; 25 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 3758 IH (B) a unit of local government, means the 1 district attorney of the unit of local govern- 2 ment; and 3 (C) a Tribal organization, means the lead 4 prosecutor of the Tribal organization. 5 (7) CHIEF PUBLIC DEFENDER.—The term 6 ‘‘chief public defender’’, with respect to a State, unit 7 of local government, or Tribal organization, means 8 the head of the public defender’s office of the State, 9 unit of local government, or Tribal organization, re- 10 spectively. 11 (8) CORRESPONDING PROSECUTOR’S OFFICE.— 12 The term ‘‘corresponding prosecutor’s office’’, with 13 respect to a public defender’s office, means the pros- 14 ecutorial unit that appears adverse to the public de- 15 fender’s office in criminal proceedings. 16 (9) COVERED GRANT.—The term ‘‘covered 17 grant’’ means a grant awarded under section 4. 18 (10) DOMINANT CHARGE.—The term ‘‘domi- 19 nant charge’’, with respect to a case that involves 20 multiple charges, means the charge that carries the 21 most severe or lengthy maximum penalty. 22 (11) ELIGIBLE ENTITY.—The term ‘‘eligible en- 23 tity’’ means a State, unit of local government, Tribal 24 organization, or public defender’s office that, as of 25 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 3758 IH the date of enactment of this Act and without re- 1 gard to the deadlines under section 4(b)— 2 (A) has not developed and implemented a 3 data collection process that meets the require- 4 ments under paragraph (1) of that section; 5 (B) has not developed workload limits that 6 meet the requirements under paragraph (2) of 7 that section, or has developed such limits but is 8 not in compliance with the limits; or 9 (C) does not meet the compensation re- 10 quirements under paragraph (3) of that section. 11 (12) FULL-TIME.—The term ‘‘full-time’’, with 12 respect to an employee of a prosecutor’s office or 13 public defender’s office, means an employee who 14 works not less than 40 hours per week for that of- 15 fice. 16 (13) PERIPHERAL CHARGE.—The term ‘‘periph- 17 eral charge’’, with respect to a case that involves 18 multiple charges, means any charge that is not the 19 dominant charge. 20 (14) PROSECUTOR.—The term ‘‘prosecutor’’— 21 (A) has the meaning given the term in sec- 22 tion 3001(b) of title I of the Omnibus Crime 23 Control and Safe Streets Act of 1968 (34 24 U.S.C. 10671(b)); and 25 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 3758 IH (B) includes a full-time employee of a 1 Tribal organization who— 2 (i) is continually licensed to practice 3 law; and 4 (ii) carries out activities equivalent to 5 those of a prosecutor referred to in sub- 6 paragraph (A). 7 (15) PROSECUTOR’S OFFICE; PUBLIC DE- 8 FENDER’S OFFICE.—The terms ‘‘prosecutor’s office’’ 9 and ‘‘public defender’s office’’ mean an agency or of- 10 fice of a State, unit of local government, or Tribal 11 organization that employs prosecutors or public de- 12 fenders, respectively. 13 (16) PUBLIC DEFENDER.—The term ‘‘public 14 defender’’— 15 (A) has the meaning given the term in sec- 16 tion 3001(b) of title I of the Omnibus Crime 17 Control and Safe Streets Act of 1968 (34 18 U.S.C. 10671(b)); and 19 (B) includes an attorney employed by a 20 Tribal organization who— 21 (i) is continually licensed to practice 22 law; and 23 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 3758 IH (ii) carries out activities equivalent to 1 those of a public defender referred to in 2 subparagraph (A). 3 (17) STAFF ATTORNEY.—The term ‘‘staff attor- 4 ney’’, with respect to a prosecutor’s office or public 5 defender’s office, means a prosecutor or public de- 6 fender who is not the chief prosecutor or chief public 7 defender, respectively. 8 (18) STATE.—The term ‘‘State’’ has the mean- 9 ing given the term in section 901 of title I of the 10 Omnibus Crime Control and Safe Streets Act of 11 1968 (34 U.S.C. 10251). 12 (19) TRIBAL ORGANIZATION.—The term ‘‘Trib- 13 al organization’’ has the meaning given the term 14 ‘‘tribal organization’’ in section 4(l) of the Indian 15 Self-Determination and Education Assistance Act 16 (25 U.S.C. 5304(l)). 17 (20) UNIT OF LOCAL GOVERNMENT.—The term 18 ‘‘unit of local government’’ has the meaning given 19 the term in section 901 of title I of the Omnibus 20 Crime Control and Safe Streets Act of 1968 (34 21 U.S.C. 10251). 22 SEC. 4. PUBLIC DEFENSE GRANT PROGRAM. 23 (a) GRANT AUTHORITY.— 24 (1) IN GENERAL.— 25 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 3758 IH (A) INITIAL GRANTS.—During the first 5 1 fiscal years beginning after the date of enact- 2 ment of this Act, the Attorney General shall 3 award a grant, to be used for public defense, to 4 any eligible entity that commits to satisfying 5 the requirements under subsection (b) and sec- 6 tion 5. 7 (B) CONTINUING GRANTS.—During the 8 sixth fiscal year beginning after the date of en- 9 actment of this Act, and each fiscal year there- 10 after, the Attorney General shall award a grant 11 to any eligible entity that— 12 (i) commits to satisfying the require- 13 ments under section 5; 14 (ii) certifies that the eligible entity is 15 in compliance with— 16 (I) the workload limits developed 17 by the eligible entity under subsection 18 (b)(2) of this section; and 19 (II) the requirements under sub- 20 section (b)(3) of this section; and 21 (iii) commits to using the grant funds 22 for public defense. 23 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 3758 IH (2) AMOUNT.—In applying for a grant under 1 paragraph (1), an eligible entity shall request a 2 grant amount that takes into account— 3 (A) any technology and training required 4 to meet the requirements under subsection 5 (b)(1); and 6 (B) the size of the justice system— 7 (i) that the entity administers or in 8 which the entity participates, as applicable, 9 relative to the size of other justice systems 10 in— 11 (I) the United States, if the enti- 12 ty is a State or a public defender’s of- 13 fice of a State; or 14 (II) the State in which the entity 15 is located, if the entity is a unit of 16 local government or a public defend- 17 er’s office of a unit of local govern- 18 ment; or 19 (ii) of the Indian Tribe, if the entity 20 is a Tribal organization or a public defend- 21 er’s office of a Tribal organization. 22 (b) REQUIREMENTS.—The requirements for an eligi- 23 ble entity under this subsection are as follows: 24 (1) DATA COLLECTION.— 25 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 3758 IH (A) PROCESS.—During the first fiscal year 1 for which the eligible entity receives a covered 2 grant, the eligible entity shall develop and im- 3 plement a process for collecting the following 4 data for full-time attorneys employed by each 5 applicable public defender’s office during the 6 fiscal year: 7 (i) The mean and median number of 8 hours per month worked per attorney. 9 (ii) The mean and median percentage 10 of hours per month spent with clients per 11 attorney, excluding court appearances. 12 (iii) The mean and median percentage 13 of hours per month spent in court pro- 14 ceedings per attorney. 15 (iv) The mean and median percentage 16 of hours spent per month by an attorney 17 on— 18 (I) investigation; 19 (II) research; 20 (III) writing; and 21 (IV) preparation. 22 (v) The amount of attorney turnover, 23 broken down by the level of experience and 24 length of employment of the attorney. 25 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 3758 IH (vi) The number of open cases as of 1 the last day of the fiscal year, broken down 2 by— 3 (I) case type, including by— 4 (aa) the dominant charge; 5 and 6 (bb) each peripheral charge; 7 (II) the attorney, who shall be 8 identified using an anonymized unique 9 identifier; 10 (III) the date on which the attor- 11 ney was appointed to the case; and 12 (IV) the date on which the attor- 13 ney first met with the client. 14 (vii) The number of cases closed dur- 15 ing the fiscal year, broken down by— 16 (I) case type, including by— 17 (aa) the dominant charge; 18 and 19 (bb) each peripheral charge; 20 (II) the attorney, who shall be 21 identified using an anonymized unique 22 identifier; 23 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 13 •HR 3758 IH (III) the date on which the case 1 was referred to the public defender’s 2 office; 3 (IV) the date on which the attor- 4 ney was appointed to the case; and 5 (V) the date on which the case 6 was closed. 7 (B) COLLECTION AND SUBMISSION RE- 8 QUIREMENT.—For the second fiscal year, and 9 each subsequent fiscal year, for which an eligi- 10 ble entity receives a covered grant, the eligible 11 entity shall— 12 (i) collect the data described in sub- 13 paragraph (A) with respect to that fiscal 14 year; and 15 (ii) submit the data to the Attorney 16 General. 17 (2) WORKLOAD LIMITS.— 18 (A) DEVELOPMENT OF WORKLOAD LIM- 19 ITS.—During the second fiscal year for which 20 the eligible entity receives a covered grant, the 21 eligible entity shall develop workload limits, 22 based on the data collected under paragraph 23 (1), that provide each full-time public defender 24 VerDate Sep 11 2014 01:58 Jun 21, 2023 Jkt 039200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H3758.IH H3758 kjohnson on DSK79L0C42PROD with BILLS 14 •HR 3758 IH employed by an applicable public defender’s of- 1 fice with sufficient time to provide— 2 (i) reasonably effective assistance of 3 counsel pursuant to prevailing professional 4 norms; and 5 (ii) competent representation pursu- 6 ant to applicable rules of professional re- 7 sponsibility. 8 (B) PERIODIC UPDATES.—If the eligible 9 entity receives covered grants under subsection 10 (a)(1)(B), t [Text truncated for display. 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