Law Commons^™

"It's Not You, It's Your Caseload": Using Cronic To Solve Indigent Defense Underfunding, Samantha Jaffe

Michigan Law Review

In the United States, defendants in both federal and state prosecutions have the constitutional right to effective assistance of counsel. That right is in jeopardy. In the postconviction setting, the standard for ineffective assistance of counsel is prohibitively high, and Congress has restricted federal habeas review. At trial, severe underfunding for state indigent defense systems has led to low pay, little support, and extreme caseloads—which combine to create conditions where lawyers simply cannot represent clients adequately. Overworked public defenders and contract attorneys represent 80 percent of state felony defendants annually. Three out of four countywide public defender systems and fifteen …

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

Articles

In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the 1960s. …

Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak

Michigan Law Review

If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy. This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is …

The Illusory Right To Counsel, Eve Brensike Primus

Articles

Imagine a woman wrongly accused of murdering her fianc6. She is arrested and charged with first-degree murder. If convicted, she faces a mandatory sentence of life without the possibility of parole. Her family scrapes together enough money to hire two attorneys to represent her at trial. There is no physical evidence connecting her to the murder, but the prosecution builds its case on circumstantial inferences. Her trial attorneys admit that they were so cocky and confident that she would be acquitted that they did not bother to investigate her case or file a single pre-trial motion. Rather, they waived the …

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …

Representing Race Outside Of Explicitly Racialized Contexts, Naomi R. Cahn

Michigan Law Review

Welfare "as we know it" ended in 1996, a victim of a conservatism that views welfare recipients as lazy and immoral. One aspect of welfare that is, however, unlikely to experience radical change is child support. More vigorous child support enforcement has become an increasingly important component of federal welfare reform bills over the past two decades because of the twin hopes of fiscal and parental responsibility: first, that child support will reimburse welfare costs, and second, that fathers will take more responsibility for their children. Child support programs within the welfare system perpetuate a negative perception of poor people. …

Recalibrating The Balance: Reflections On Welfare Reform, Jeffrey Lehman, Sheldon Danziger

Law Quadrangle (formerly Law Quad Notes)

During the 1992 presidential campaign, Candidate Clinton promised, in Putting People First, "to make work pay" and to "end welfare as we know it":

"It's time to honor and reward people who work hard and play by the rules. That means ending welfare as we know it not by punishing the poor or preaching to them, but by empowering Americans to take care of their children and improve their lives. No one who works full-time and has children at home should be poor anymore. No one who can work should beable to stay on welfare forever."

Ann Arbor And Legal Aid, James J. White

Articles

Since the leasing of its office in August 1965, the Washtenaw County Legal Aid Society has been open nearly 50 hours per week and has been staffed exclusively by second and third-year law students from the University of Michigan Law School. The bulk of the practice has been in family law--divorce, support, custody--but there have been a substantial number of creditor-debtor cases, a handful of misdemeanor defense cases, and a large batch of miscellaneous cases.