The Biggest Access To Justice Issues Of 2023

By Marco Poggio | December 15, 2023, 7:02 PM EST ·

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The death penalty, civil forfeiture, voting rights and gerrymandering cases, and pay for legal aid workers garnered some of the biggest headlines in the Access to Justice world in 2023. (

High-profile death penalty cases, voting rights, civil forfeiture and fair pay for legal aid workers were among the biggest issues this year impacting the rights of disadvantaged people facing challenges in the American justice system.

A movement to create exclusions to keep severely mentally ill people from facing the death penalty gained ground in 2023 as at least one survey showed that the public's doubts about the overall fairness of capital punishment continued to grow.

Meanwhile, as litigation centering on partisan gerrymandering played out in several states, the U.S. Supreme Court found that an Alabama congressional map violated federal law. The high court also decided for the first time in over a decade to delve into the legal standards at play in the seizure of people's assets at the center of criminal investigations.

Finally, legal aid workers in major urban areas took their fight for higher salaries and better work conditions to the streets.

Law360 recently spoke to legal experts and attorneys about these issues and how they defined 2023.

A Majority of Americans Doubt the Death Penalty's Fairness

According to a report published earlier this month by the Death Penalty Information Center, the number of executions in the United States increased slightly in 2023 — 24 this year compared to 18 last year — driven mostly by Texas and Florida. And for the first time, the number of executions was higher than the number of new death sentences imposed.

More remarkably, a majority of the public said it doubted the fairness of capital punishment, according to a Gallup poll published in November. The poll found 50% of Americans think the death penalty is not administered fairly, versus 47% who think it is.

"The data show that the majority of Americans are rejecting the death penalty as an expensive, unfair and ineffective public policy," Robin M. Maher, the Death Penalty Information Center's executive director, told Law360.

The case of Richard Glossip, an Oklahoma man convicted of plotting his boss's murder in 1997 and whose scheduled execution in May was put off by the Supreme Court, has brought high visibility on the issue of fairness.

Oklahoma Attorney General Gentner Drummond, who admitted that Glossip's murder conviction was tainted by constitutional violations and possible prosecutorial misconduct, has supported sparing the man's life. The justices held a conference to look into Glossip's petitions earlier this month. The next conference is slated for Jan. 5, and a decision is expected in the new year.

protestors outside of courthouse

Protesters rally outside the U.S. Supreme Court in Washington, D.C., in support of Richard Glossip, an Oklahoma man whose murder conviction and death sentence are being reviewed by the justices.

But 2023 was also a year of significant legislative developments around the death penalty, in particular in the way it intersects with severe mental illness. Legislatures in three states — Arizona, Arkansas and Texas — proposed bills to exempt people with severe mental illness from death penalty eligibility.

While the proposals failed in Arizona and Arkansas, the Texas bill overwhelmingly passed the state's House of Representatives in April. Although no action has been taken in the state Senate, Texas' legislative session continues into 2024, so a breakthrough is still possible.

"Most people are spending decades on death row in conditions of severe isolation and deprivation. And we know the research says that long-term solitary confinement causes mental illness in people or exacerbates existing mental illness," Maher said.

The death penalty remains on the books in 27 states, though only five conducted executions this year. Meanwhile, 29 states and the District of Columbia have either abolished the death penalty or have paused executions by executive action.

"The majority of the United States is not using the death penalty, does not believe the death penalty will make them safer, or deter future crime," Maher said.

While Texas retained its status as the state with the highest number of executions — eight — Florida's six executions drove this year's uptick, the Death Penalty Information Center's report said.

Maher said the number of people each state puts to death is not indicative of the public support for the death penalty, but rather the result of executive decisions by a small number of elected officials. She said capital punishment has always been used as a political tool to build elected officials' "tough on crime" credentials, particularly during election years.

She mentioned Gov. Ron DeSantis of Florida, who is running a presidential campaign, as an example. Florida resumed executions this year after a three-year pause.

"Gov. DeSantis makes the decision about whether to schedule an execution and who to execute, not the courts, not certainly the people of Florida," Maher said. "He had his own reasons for scheduling these executions."

Civil Forfeiture Goes Before the High Court

In April, the U.S. Supreme Court agreed to jointly hear two cases involving two women, Halima Culley and Lena Sutton, whose cars were seized and kept by Alabama state officials for months, a process called civil forfeiture, despite neither being charged with a crime. The case centers on whether the U.S. Constitution requires state or local governments to require a post-seizure hearing, and if so, when.

The issue is high stakes. Law enforcement across the U.S. confiscate billions of dollars worth of assets from people every year, including cash, cars, weapons and real estate. Those seizures burden defendants, and often members of their families who are unconnected to the underlying criminal cases.

Dan Alban, a senior attorney at the nonprofit Institute for Justice, told Law360 that, even if people ultimately get their property back, sometimes years later, seizures severely impact their lives.

"If you need a car to get to work or to get your kids to school, or to go grocery shopping, you can't really live without a car for years on end, while your case wades through the legal system," he said.

In Alabama and 25 other states, governments get to keep all proceeds from the sale of seized property. Legal experts have long argued that this creates an incentive for state and local authorities to confiscate as much as possible.

The case involving Culley and Sutton, which was argued before the justices in October, marked the first time since 2009 that the Supreme Court has agreed to look at whether people whose property gets seized are entitled to a prompt hearing.

In the case from 2009, Alvarez v. Smith , six criminal defendants whose property was seized claimed that the state of Illinois had failed to provide a speedy hearing to reclaim their assets in violation of the 14th Amendment's due process clause. The case became moot before the justices decided the case, however.

The case currently pending, Culley v. Marshall , presents a very similar issue. During oral arguments, the justices questioned whether the case is suitable for a sweeping ruling and appeared inclined to decide the case narrowly.

In another important development on the issue of civil forfeiture this year, a federal forfeiture reform bill, the FAIR Act, passed the U.S. House of Representatives' judiciary committee in June. The proposed legislation, which has bipartisan support, would have three major effects: First, it would end the profit incentive connected to seizure by sending federal forfeiture funds to the general U.S. Treasury Department instead of allowing them to be controlled directly by the U.S. Department of Justice.

Second, the law would eliminate a program called "equitable sharing," which allows state and local law enforcement to circumvent civil forfeiture protections under state law by sending seized property to federal agencies operating under less stringent protections.

Third, the FAIR Act would eliminate a process called administrative forfeiture, under which people who have had their property seized by a federal agency need to navigate a maze of bureaucracy before they can even have their day in court. Alban said that an average of 90% of all civil federal forfeiture cases, and for certain agencies up to 99%, are handled using this process.

"There are a lot of pitfalls there. People make a lot of mistakes. They fill out the paperwork wrong, they misunderstand what they're supposed to do. They don't fill out paperwork in time," Alban said. "As a result, the vast majority of federal forfeiture cases never see the inside of a courtroom, never get a judge, and are instead resolved by the agency itself," usually by deciding in favor of the government.

A Big Year for Voting Rights Cases

The past year was also a remarkable one for voting rights litigation, particularly around redistricting.

In June, the U.S. Supreme Court ruled in Allen v. Milligan that congressional maps drawn by Alabama's Republican-led Legislature violated the Voting Rights Act because they were drawn in a way that diminished the voting power of Black residents. After the court's new term began in October, another voting rights case, Alexander v. South Carolina NAACP , came before the justices.

Unlike the case brought against Alabama, the latest, most high-profile case centers on whether South Carolina's congressional map, which critics say was gerrymandered based on race, violates the equal protection clause of the Fourteenth Amendment, as well as the Fifteenth Amendment's prohibition on denying voting rights on account of race.

The NAACP argued the Republican-led state Legislature carved out a part of Charleston County in a way that shifted voters out of the majority-Black coastal area in the state's 1st Congressional District, which has become more competitive, to the nearby 6th Congressional District, where Black people were already a majority.

While the state countered that the change was motivated by partisan advantage, not race, a federal district court panel found in October 2022 that the map was an "unconstitutional racial gerrymander" that "bleached" the Black vote.

Kareem Crayton, a staff attorney at the Brennan Center for Justice and an expert on the intersection of law, politics and race, said that moving people from one district to another is a normal process necessary to comply with the one-person-one-vote principle guaranteed by law. In redrawing the map in South Carolina, however, he said legislators moved way more people than necessary to comply with that principle.

"There was persuasive evidence given to the court that race informed those choices more than party did," Crayton said.

During oral argument before the U.S. Supreme Court, however, the conservative-leaning justices appeared to doubt the evidence against the state and seemed poised to overturn the ruling.

Crayton said the case gets into a gray area where partisan gerrymandering has been left open for states to regulate, while at the same time pronouncing itself strongly against the use of race as the predominant motive in drawing districts.

Though most challenges to gerrymandering over the past year involved maps favoring Republicans, Democrats also face accusations of partisan gerrymandering.

This week, the New York Court of Appeals, the state's highest court, cleared the way for the state to redraw its congressional map, and Democrats, which control the state Legislature, are expected to seize the moment by making changes that will favor them in the next elections.

Although redistricting gets most of the attention, there were other aspects of voting rights that saw important developments this year. In August, the Fifth Circuit issued a major ruling in Hopkins v. Hosemann , which overturned Mississippi's lifetime voting ban for people with disqualifying felony convictions.

The ruling, which restored voting rights for tens of thousands of Mississippians, marked the first time a federal court has ruled that permanently banning felons from voting is a form of cruel and unusual punishment in violation of the Eighth Amendment, according to experts.

Legal Aid Workers on Strike

In February, hundreds of attorneys and professionals at the Legal Aid Society of New York, the country's largest public law firm serving low-income people, staged a walkout to demand raises and reduced caseloads amid a wave of resignations at the organization.

Then in September, Legal Aid Society attorneys and professionals organized another day of picketing to pressure their management to provide better pay, protesting what they described as insufficient wages, staggering attrition and stalled negotiations.

The UAW Local 2325 — or the Association of Legal Aid Attorneys — and 1199SEIU United Healthcare Workers East, which represent the organization's staff, have said their members have been working under expired contracts since June 2022.

striking workers holding signs

Members of the Association of Legal Aid Attorneys (ALAA) rally in front of Brooklyn Borough Hall after walking off the job. (Emily Lever | Law360)

Unionized attorneys and staffers at two other legal aid organizations, the New York Legal Assistance Group and the Children's Law Center in New York City, also organized strikes to demand better pay and better conditions.

Jane Fox, the chair of the Legal Aid society's chapter of the Association of Legal Aid Attorneys, told Law360 in a recent interview that many of the organization's members have left in recent years due to stagnant wages and severe workloads.

Replacing people who have left, in particular those in intermediate and senior positions, has become increasingly challenging because salaries are not competitive enough to attract new talent. Those who have stayed, meanwhile, have experienced worsening conditions, shouldering even more work and often burning out, she said.

"Legal service attorneys and public defenders have really never been compensated as much as we deserve to be. But it's been particularly tough in the past few years," Fox said. "We're experiencing an attrition crisis."

Last month, attorneys with the Center for Reproductive Rights announced their intention to join UAW Local 2325 to help improve staff workloads, turnover and well-being.

Those issues aren't limited to the Northeast, but are rather a national crisis, experts say.

In September, the National Public Defense Workload Study found that public defenders are extremely overworked, to the point they struggle to provide effective legal representation to people accused of crimes, which is a requirement under the U.S. Constitution.

The study looked at the 50-year-old guidelines that are used to estimate the maximum number of cases that defense attorneys should handle, and found they are out of date and inapplicable today.

Public defenders and civil legal aid lawyers are the lowest-paid attorneys in the nation, with the median salary for entry-level lawyers stuck at $57,500 a year in 2022, according to a survey by the National Association for Law Placement mentioned in a report by the American Bar Association published in November.

Meanwhile, the Tennessee Supreme Court in October asked that pay for court-appointed attorneys be increased by the Legislature to confront a crippling shortage.

"Every day we hear from judges who must find lawyers to represent citizens who are constitutionally entitled to legal counsel. They tell us that the system is teetering on the brink," Tennessee Supreme Court Chief Justice Holly Kirby said in a statement accompanying the request. "Court proceedings can't happen without court-appointed attorneys, but attorneys can't afford to take cases at the current rates. The criminal justice and juvenile court systems are running out of options."

--Additional reporting by Jack Karp, Katie Buehler, Jess Krochtengel, Emily Lever and Tracey Read. Editing by Lakshna Mehta.

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