EQUAL Defense Act of 2021
Bill: H.R.1408 | Sponsor: Rep. Deutch, Theodore E. (D-FL)
Policy area: Crime and Law Enforcement

Summary:
Ensuring Quality Access to Legal Defense Act of 2021 or the EQUAL Defense Act of 2021
This bill establishes and modifies certain programs that support the delivery of public defense services (i.e., legal services for criminal defendants who cannot afford counsel).
Specifically, the bill directs the Department of Justice (DOJ) to award grants to state and local governments, tribal organizations, and public defender offices for public defense. A grant recipient must use the grant to establish a data collection process, develop workload limits, and satisfy specified compensation requirements (e.g., pay parity between public defenders and prosecutors).
The bill also directs DOJ to award grants to nonprofits and government organizations to train public defenders, court-appointed attorneys, and contract attorneys.
Additionally, a state that receives Edward Byrne Memorial Justice Assistance Grant program funds must annually submit to DOJ information related to the legal representation of defendants in criminal cases.
Finally, it reauthorizes through FY2025 the student loan repayment program for prosecutors and public defenders and otherwise revises the program, including by increasing the maximum benefit amount.

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

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 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''.

SEC. 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.

SEC. 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).

SEC. 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.

SEC. 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).

SEC. 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.).

SEC. 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.

SEC. 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''.
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