Law Commons^™

The Problematic Structure Of Indigent Defense Delivery, Eve Brensike Primus

Michigan Law Review

The national conversation about criminal justice reform largely ignores the critical need for structural reforms in the provision of indigent defense. In most parts of the country, decisions about how to structure the provision of indigent defense are made at the local level, resulting in a fragmented patchwork of different indigent defense delivery systems. In most counties, if an indigent criminal defendant gets representation at all, it comes from assigned counsel or flat-fee contract lawyers rather than public defenders. In those assigned-counsel and flat-fee contract systems, the lawyers representing indigent defendants have financial incentives to get rid of assigned criminal …

Getting Gideon Right, Andrew L.B. Davies, Blane Skiles, Pamela R. Metzger, Janelle Gursoy, Alex Romo

Deason Criminal Justice Reform Center

In Gideon v. Wainwright, the U.S. Supreme Court held that the government must provide a criminal defense lawyer for any accused person who cannot afford one. But for too many people, Gideon's promise remains unfulfilled. In Texas, there are no statewide guidelines about who is entitled to a court-appointed lawyer. Instead, counties create their own rules that create serious gaps in constitutional protection. Getting Gideon Right investigates the financial standards that determine an accused person's eligibility for appointed counsel in Texas county courts. The report reveals a patchwork of county court policies that are both complex and severe.

Pay To Play? Campaign Finance And The Incentive Gap In The Sixth Amendment's Right To Counsel, Neel U. Sukhatme, Jay Jenkins

Georgetown Law Faculty Publications and Other Works

For nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay. Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise. These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

We contend that these conventional critiques are incomplete. Rather, indigent defense systems often fail due to poor …

Privatizing Criminal Procedure, John D. King

Scholarly Articles

As the staggering costs of the criminal justice system continue to rise, states have begun to look for nontraditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology …

New York Breaks Gideon’S Promise, Rebecca King

Pace Law Review

In 1963, the Supreme Court of the United States held that criminal defendants have the constitutional right to counsel, regardless of whether they can afford one, in the famous case of Gideon v. Wainwright. However, statistics, as well as public defense attorneys, reveal that the Supreme Court’s decision has yet to be fulfilled. Part of the problem is due to the system of mass incarceration in the United States. In 2013, the Brennan Center for Justice reported that the prison population reached 2.3 million individuals, compared to the 217,000 inmates imprisoned when Gideon was decided. The American Bar Association estimates …

Appointed Counsel And Jury Trial: The Rights That Undermine The Other Rights, Russell L. Christopher

Washington and Lee Law Review

Do the Sixth Amendment rights to appointed counsel and jury trial unconstitutionally conflict with defendants’ other constitutional rights? For indigents charged with felonies, Gideon v. Wainwright guarantees the right to appointed counsel; for misdemeanors, Scott v. Illinois limits the right to indigents receiving the most severe authorized punishment—imprisonment.Duncan v. Illinois limits the right to jury trial to defendants charged with serious offenses. Consequently, the greater the jeopardy faced by defendants, the greater the eligibility for appointed counsel and jury trial. But defendants’ other constitutional rights generally facilitate just the opposite— minimizing jeopardy by reducing charges, lessening the likelihood of …

Keynote Remarks, Vanita Gupta

Michigan Journal of Race and Law

In communities across America today, from Ferguson, Missouri, to Flint, Michigan, too many people—especially young people and people of color—live trapped by the weight of poverty and injustice. They suffer the disparate impact of policies driven by, at best, benign neglect, and at worst, deliberate indifference. And they see how discrimination stacks the deck against them. So today, as we discuss the inequality that pervades our criminal justice system—a defining civil rights challenge of the 21st century—we must also acknowledge the broader inequalities we face in other segments of society. Because discrimination in so many areas—from the classroom, to the …

The Prioritization Of Criminal Over Civil Counsel And The Discounted Danger Of Private Power, Kathryn A. Sabbeth

Florida State University Law Review

This Article seeks to make two contributions to the literature on the role of counsel. First, it brings together civil Gideon research and recent studies of collateral consequences. Like criminal convictions, civil judgments result in far-reaching collateral consequences, and these should be included in any evaluation of the private interests that civil lawyers protect. Second, this Article argues that the prioritization of criminal defense counsel over civil counsel reflects a mistaken view of lawyers’ primary role as a shield against government power. Lawyers also serve a vital role in checking the power of private actors. As private actors increasingly take …

Reliability Matters: Reassociating Bagley Materality, Strickland Prejudice, And Cumulative Harmless Error, John H. Blume, Christopher W. Seeds

John H. Blume

Most commonly invoked after conviction and direct appeal, when a defendant may claim that his lawyer was ineffective or that the government failed to disclose exculpatory information, the Brady doctrine, which governs the prosecutor’s duty to disclose favorable evidence to the defense, and the Strickland doctrine, which monitors defense counsel’s duty to represent the client effectively, have developed into the principal safeguards of fair trials, fundamental to the protection of defendants’ constitutional rights and arguably defendants’ strongest insurance of a reliable verdict. But the doctrines do not sufficiently protect these core values. The doctrines, despite their common due process heritage …

The Problem With Misdemeanor Representation, Erica J. Hashimoto

Scholarly Works

The failure to appoint counsel in misdemeanor cases may represent one of the most widespread violations of federal constitutional rights in criminal cases. A decade ago, in Alabama v. Shelton, the Supreme Court held that indigent defendants sentenced to suspended terms of incarceration in misdemeanor cases have a constitutional right to appointed counsel, even if the defendant is never actually incarcerated. Several factors contribute to this omission. First, some jurisdictions have simply refused to honor the Court's holding. Second, potentially unconstitutional barriers to the appointment of counsel-including prohibitively high fees imposed on defendants, failures to fully inform defendants of their …

A Cumulative Approach To Ineffective Assistance: New York’S Requirement That Counsel’S Cumulative Efforts Amount To Meaningful Representation - People V. Bodden, Jan Lucas

Touro Law Review

No abstract provided.

When The Cheering (For Gideon ) Stops: The Defense Bar And Representation At Initial Bail Hearings, Douglas Colbert

Douglas L. Colbert

This article suggests that the absence of representation at the beginning of a State criminal prosecution must come to a screeching halt. The criminal defense bar should take a leadership role and dedicate Gideon's anniversary to making certain that an accused's right to the effective assistance of counsel begins at the initial bail hearing. Indeed, guaranteeing vigorous representation should be the defense bar's number one priority.

When The Cheering (For Gideon ) Stops: The Defense Bar And Representation At Initial Bail Hearings, Douglas L. Colbert

Faculty Scholarship

This article suggests that the absence of representation at the beginning of a State criminal prosecution must come to a screeching halt. The criminal defense bar should take a leadership role and dedicate Gideon's anniversary to making certain that an accused's right to the effective assistance of counsel begins at the initial bail hearing. Indeed, guaranteeing vigorous representation should be the defense bar's number one priority.

Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter

Faculty Scholarship

This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country.

This Article analyzes specific budget cuts from various states and …

The Invisible Pillar Of Gideon, Adam M. Gershowitz

Indiana Law Journal

In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay's requestfor appointed counsel. ' Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …

Reliability Matters: Reassociating Bagley Materality, Strickland Prejudice, And Cumulative Harmless Error, John H. Blume, Christopher W. Seeds

Cornell Law Faculty Publications

Most commonly invoked after conviction and direct appeal, when a defendant may claim that his lawyer was ineffective or that the government failed to disclose exculpatory information, the Brady doctrine, which governs the prosecutor’s duty to disclose favorable evidence to the defense, and the Strickland doctrine, which monitors defense counsel’s duty to represent the client effectively, have developed into the principal safeguards of fair trials, fundamental to the protection of defendants’ constitutional rights and arguably defendants’ strongest insurance of a reliable verdict. But the doctrines do not sufficiently protect these core values.

The doctrines, despite their common due process heritage …

Procedural Labyrinths And The Injustice Of Death: A Critique Of Death Penalty Habeas Corpus (Part One), Alan W. Clarke

University of Richmond Law Review

Habeas corpus was once a broad writ of liberty: it served to give meaning to expanding notions of due process, it forced state judicial systems to obey constitutional commands, and it made effective modern conceptions of fundamental fairness. Although a simple implement of humble origin, U.S. habeas corpus became inextricably interwoven with the substantive rights it enforced. Without a practical remedy, cutting across state boundaries and affording uniform access, the substantive rights themselves lose meaning. A right without remedy is a right without meaning. Thus, habeas corpus became an important part of the substantive rights that it enforced.

A Further Inquiry Into The Quality Of Indigent Felony Defense., Richard L. Huff

St. Mary's Law Journal

One of the primary goals of a democracy is equality before the law for all of its citizens. To this end, in 1963, the Supreme Court held that states must provide counsel to indigent defendants, at their own expense, in all felony trials. Although other jurisdictions have chosen a defender system of criminal attorneys hired by the local government to meet the Supreme Court’s mandate, Bexar County, Texas, utilizes a system of assigning members of the local bar to defendants in rotation. Contrary to the prevailing view, it is submitted that Bexar County's assigned counsel system provides adequate representation for …

Newman: Conviction: The Determination Of Guilt Or Innocence Without Trial, B. J. George Jr.

Michigan Law Review

A Review of Conviction: The Determination of Guilt or Innocence Without Trial by Donald J. Newman

Model Defense Of Needy Persons Act, Reed Dickerson

Articles by Maurer Faculty

Recent decisions of the Supreme Court have expanded the duty of the states to provide counsel for defendants in criminal cases. The following statute seeks to set up a workable system of assuring the accused the assistance of counsel early in the proceedings against him and, if necessary, at no cost.