NCCRC works with Congressional members to fix appointment of counsel problem in federal courts

A federal statute, 28 U.S.C. § 1915, permits federal courts to “request” a lawyer to represent a pro se litigant, but it does not allow the court to appoint a lawyer and has no guidance as to when providing a lawyer should happen.  In the absence of guidance, half the federal courts provide counsel from time to time while the other half require “exceptional circumstances” to exist that they almost never find.  To remedy this, we worked with U.S. House Representative John Sarbanes (now retired) and U.S. Senate Chris Van Hollen to draft a bill giving the courts the power to appoint counsel, providing some factors to weigh in deciding whether to appoint counsel, and preventing courts from delaying requests for appointment of counsel until ruling on motions to dismiss.  U.S. Representative Mary Scanlon, who took over the bill with the retirement of Representative Sarbanes, issued a press release about the bill, and we’ve written a FAQ about it.  The bill was introduced late in 2024 in the House and Senate and is expected to be reintroduced in 2025 for the new Congress.

A 2025 case highlights the need for this bill.  In Austin v. Hansen, a state prisoner pursuing an Eighth Amendment claim based on deliberate indifference to his serious medical needs requested the court provide counsel for him, arguing that the presence of counsel was required because “he is severely mentally ill, could not understand medical documents, and was in an administrative segregation wing of a new prison without access to legal assistance and with diminished access to law library services.”  The district court agreed that these circumstances meant he needed counsel, but because 18 U.S.C. § 1915 only allows federal district courts to “request” that an attorney represent someone (i.e. they do not have the power to appoint a lawyer), the district court tried and failed to recruit an attorney over several months.  At that point the district court reassessed the situation and determined that the prisoner was in fact capable of proceeding without counsel because he had “shown that he could “actively and aggressively” litigate his case by participating in discovery and responding to motions with clear facts and case law to support his arguments.”  On appeal the Seventh Circuit found no abuse of discretion, holding that the standard for recruiting counsel “should be informed by the realities of recruiting counsel in the district”, that the district court acted reasonably in concluding that searching for more time would be futile, and that the district court had also properly reassessed the prisoner’s capacity.