Language Access Advocacy After Sandoval: A Case Study of Administrative Enforcement Outside the Shadow of Judicial Review

Jessica Rubin-Wills

Abstract

Many individuals with limited English proficiency (“LEP”) face language barriers that make it difficult for them to access federally funded services for which they are eligible, including public housing, welfare benefits, and health care. In response to this concern, the federal government issued regulations under Title VI of the Civil Rights Act of 1964 that require any programs receiving federal funding to provide oral interpretation and written translation for LEP individuals. In 2001, the Supreme Court ruled in Alexander v. Sandoval that individuals have no private right of action to enforce these language access regulations in court. Instead, lawyers for LEP individuals have been forced to rely on filing administrative complaints with federal agencies rather than using litigation to vindicate their clients’ rights under Title VI. This Article examines language access advocacy in the decade since Sandoval as a case study of how effectively federal civil rights laws can be enforced in the absence of judicial review. As this Article finds, the administrative enforcement process provides incentives for all parties to reach a negotiated solution. In a setting that is often less adversarial than litigation, advocates and federal funding recipients can collaborate on long-term, comprehensive plans to improve services for the LEP community. At the same time, the administrative enforcement process fails to redress the harms to individual LEP clients who are denied access to services. The federal government uses a form of cost-benefit analysis to respond to administrative complaints, which supports efficient systemic reforms but denies relief to individual clients. The Article concludes by offering recommendations for how advocates can work within the administrative enforcement process for as long as  Sandoval remains the law and judicial review of Title VI language access claims is foreclosed. Advocates should make the cost-benefit case for language access reforms by gathering additional data to quantify the benefits and to minimize the costs. Advocates should also encourage the federal government to provide more specific guidance to funding recipients about language access obligations. Finally, advocates should seek other avenues for protecting the rights of individual LEP clients, since the administrative enforcement process does not provide individual remedies.

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The People’s Right to a Well-Funded Indigent Defender System

Martin Guggenheim

Abstract

This Article re-imagines the Sixth Amendment’s right to counsel, which has been treated exclusively as an individual right enforceable through the Due Process Clause, as a collective right of the People. It argues that there are vital structural protections inherent in the right to counsel that go well beyond an individual’s due process rights. In particular, the Constitution was designed to ensure a robust system of checks and balances when executive power was exercised. Perhaps the paradigmatic example of the exercise of such power is the arrest and prosecution of an individual. At one time, the primary means for overseeing prosecutors was through the jury system. In the modern crush of criminal justice, however, juries play a statistically insignificant checking power function. This is the first Article to suggest that the Sixth Amendment right to counsel, universally regarded as an individual right, simultaneously serves as an essential structural protection for all of society by ensuring that courts are able to perform their independent role of checking executive power. In our adversarial justice system, judges are constrained from performing more than a very modest investigation into cases. Instead, if investigations conducted outside of the executive branch are to take place, they will be done by defense counsel.

An indigent defender system is widely understood as necessary to protect and enforce the rights of its clients. But taken as a whole, the indigent system becomes something much bigger. If the individual defense attorney may be seen as a private attorney general, enforcing the rights of her client, the collective defense system should be seen as the investigative arm of the judiciary, providing meaningful oversight on executive power. Without a robust indigent defender system, one with the capacity to investigate cases on a regular basis, the executive branch ends up with a license to act which would have been unthinkable to the Framers of the Constitution who worked so carefully to ensure that executive power would be checked on a regular basis. The current system, which allocates inadequate funds for indigent defense, raises a substantial separation of powers question because, in practice, the executive branch has too much accumulated power (to prosecute and to influence the outcome of a filed case on grounds other than the merits) and, relatedly, the judicial branch is denied  the ability to carry out  its duty to decide cases independently.  The implications for this new understanding of the right to counsel are immense, not only allowing affirmative class-action challenges to under-funded indigent defender systems, but also requiring counsel for civil litigants whenever the government is the petitioner.

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Rethinking Criminal Defense Clinics in “Zero-Tolerance” Policing Regimes

M. Chris Fabricant

Abstract

This article explores one defense clinic’s evolution from an individual direct representation model to a “combined advocacy” approach in response to systemic civil rights violations associated with aggressive prosecution of “zero tolerance” policing strategies in New York City.  The pedagogical and ethical implications of engaging students in this form of criminal defense “cause lawyering” is deconstructed through an examination of the student attorneys’ experience litigating individual cases and their collaborative work with community residents, social scientists, and public interest attorneys. Finally, this piece proposes a mobile clinic to bring interdisciplinary advocacy resources directly into neighborhoods targeted by Compstat for intensive zero-tolerance policing.

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If the Convictions Don’t Fit, You Must Acquit: Examining the Constitutional Limitations on the State’s Pursuit of Inconsistent Criminal Prosecutions

Brandon Buskey

Abstract

This article provides a novel approach to the phenomenon of inconsistent prosecutions, which occur when the State’s assertions in one case conflict with or directly contradict its assertions in a separate case arising out of the same transaction or occurrence. Resolution of this issue has become pressing due to the likelihood that the United States Supreme Court will soon be asked to review the Sixth Circuit Court of Appeals’ decision in Stumpf v. Houk. The lower courts have almost uniformly reasoned that inconsistent prosecutions may violate a defendant’s procedural due process right to a fundamentally fair trial if the prosecution’s inconsistencies go “to the core” of the State’s case.

This article rejects the fair trial framework for evaluating inconsistent prosecutions, which holds that the fundamental fairness of a defendant’s trial cannot logically be affected by the State’s actions in a separate, procedurally independent trial. In its place, this article offers substantive due process as a viable legal theory, since this constitutional protection bars certain governmental action regardless of the process afforded. This article concludes that maintaining truly incompatible convictions and sentences violates substantive due process under the “shocks the conscience” test. By its own irreconcilable actions, the government has undone the presumptions of guilt that traditionally attach to defendants following conviction. Thus, for the State to knowingly place its imprimatur on at least one wrongful conviction is arbitrary in the constitutional sense.

This article then sketches potential remedies for when a court finds a substantive due process violation. If there is no inference that the defendants collaborated in the crime, both convictions must be overturned and the State must choose which defendant to pursue on retrial. Codefendants, where possible, should be retried jointly for the jury to properly assess each defendant’s role in the offense and to reach a coherent outcome.

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