Bucking conventional wisdom: the Montana Public Defender Act.

• Author: Desimone, Jessa

1. INTRODUCTION

   In 1963, the United States Supreme Court's landmark decision in Gideon v. Wainwright held that indigent defendants have a constitutional right to legal representation in state felony prosecutions. (1) In 1972, the Court in Argersinger v. Hamlin extended this right to any criminal trial--whether classified as petty, misdemeanor, or felony. (2) In 2005, the Supreme Court continued to uphold Gideon's "right to counsel revolution" in Halbert v. Michigan. (3) Justice Ginsburg, writing for the majority, stated "[t]he Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas, who seek access to first-tier review in the Michigan Court of Appeals." (4)

   While, forty years after Gideon, the basic right to counsel is firmly entrenched, the word commonly used to describe indigent public defense systems is "crisis." (5) For example, the American Bar Association (ABA) has described the system as in a "state of crisis," "a system that lacks fundamental fairness," and "shamefully inadequate." (6)

   While the problems of indigent public defense systems frequently appear as the topic of law review comments and symposia, (7) what appears less frequently is an analysis of the litigation and legislative victories that have improved state public defense systems and the factors that led to these improvements. Therefore, this Comment will examine a recent victory in Montana--a complete overhaul of its indigent public defense system from a disparate, locally controlled system to a statewide system based on nationally recognized standards for indigent defense systems, such as parity in resources and funding between the state prosecutors and public defenders. (8) In fact, Montana's system is the first state system of indigent defense that meets national standards for delivering high-quality representation. (9)

   Section II of this Comment gives an overview of the right to counsel for indigent defendants and common structures of indigent defense systems. (10) It then describes the current crisis in indigent defense systems and examines national standards and studies that describe effective indigent defense systems. (11) Section III examines past attempts at bringing change to indigent defense systems through various state courts. (12) These changes have not been particularly successful; therefore, in Section IV, this Comment examines a recent successful transformation of a state indigent defense system through the legislature, instead of through the courts. (13) While conventional wisdom says that trying to change indigent public defense systems through the legislature is political suicide, (14) the Montana Legislature passed a transformative bill without a mandate from a court, but with a push from litigators, hopefully ensuring that the political will required to fund and maintain this new public defense system is sustained. By examining the factors that led the Montana Legislature to pass this bill, this Comment will clarify how activists concerned with indigent defense should focus their limited resources, and it will show that while litigation alone is not enough to bring transformative change, it can be the catalyst for change.

2. BACKGROUND

   The Sixth Amendment to the United States Constitution states, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." (15) Until the 1960s, the Supreme Court construed this amendment to mean that in federal courts, counsel must be provided for defendants unable to employ counsel unless they waive that right. (16) In 1963, the Court held that the Sixth Amendment right to the assistance of counsel was "fundamental and essential to a fair trial" and was also binding upon the states under the Fourteenth Amendment. (17) Thus, post-Gideon, states were required to use their own resources to provide counsel for indigent defendants in felony criminal proceedings. (18)

   Gideon, however, was just the beginning of the Court's attempt to define the scope and meaning of this Sixth Amendment right as applied to the states. In the past four decades, the Supreme Court has determined that states must appoint counsel in state juvenile delinquency proceedings, (19) in any criminal proceeding in which the defendant faces the loss of liberty upon conviction, (20) and in a first appeal as of right. (21) However, the state need not appoint counsel in discretionary appeals to the state's highest court or to the U.S. Supreme Court. (22) In addition, the right to counsel attaches at critical stages that occur before trial, such as custodial interrogations, (23) post-indictment lineups, (24) and preliminary hearings. (25) Thus, the Supreme Court has expanded the rights of indigent defendants in a variety of contexts.

   1. COMMON STRUCTURES OF INDIGENT DEFENSE SYSTEMS

      Since Gideon and its progeny did not specify a particular model for organizing or funding indigent defense systems, "each state has defined the right to counsel through its own respective constitutional provisions, judicial opinions, and legislation." (26) The three most common systems of organization are: (1) the public defender model, in which salaried attorneys provide representation on indigent cases; (2) the assigned counsel model, in which the court assigns indigent cases to private attorneys who are compensated on a case-by-case basis; and (3) the contract model, in which there is a private bar contract with an attorney or a group of attorneys that will provide representation in some or all of the indigent defense cases in the jurisdiction. (27) Many states employ a combination of these three approaches. (28) Systems may be organized at the state, county, region, or judicial district level, (29) and funding can come from a combination of state funds, county funds, user fees, and court costs. (30)

   2. INEFFECTIVE ASSISTANCE OF COUNSEL

      While the Supreme Court has not specified exactly what type of indigent defense systems states must provide, it has ruled that the right to counsel requires "effective assistance of competent counsel." (31) The seminal case on this issue, Strickland v. Washington, (32) established a two-prong test to determine when there has been ineffective assistance of counsel: (1) the defendant must prove that her counsel's performance was deficient; i.e., the performance fell below an objective standard of reasonableness; and (2) this deficient performance must prejudice the defendant so as to deprive her of a fair trial; i.e., there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (33) It seems that Strickland should be a tool to ensure that a state's indigent defense system is "effective." In practice, however, courts have seldom utilized the Strickland doctrine to overturn cases based on incompetent counsel. (34) In particular, many courts have been hesitant to apply the ineffective assistance of counsel standards to public defenders assisting indigent defendants. For example, courts have not used Strickland even when public defenders were unaware of current governing law, were intoxicated at the trial, or slept through the trial. (35) Moreover, as one author noted, "the Strickland standard is applied individually and retrospectively." (36) Thus, it is difficult to challenge whole systems of indigent defense that "seem repulsive under Gideon [but] may not amount to Strickland ineffectiveness." (37) Indigent defense systems do not fail under Strickland, even when they are so short on funding that public defenders carry "caseloads that make it difficult, if not impossible, to provide effective representation." (38) Thus, federal courts have so far been unwilling to provide recourse to inadequate funding of indigent defense systems. (39)

   3. CRISIS IN STATE INDIGENT DEFENSE SYSTEMS

      The current state of crisis in indigent defense systems has been acknowledged by everyone from academics, (40) practitioners, (41) journalists, (42) and advocacy organizations (43) to the ABA. (44) The ABA, for example, held a series of public hearings in 2003 and then commissioned a report on the broken promise of Gideon. (45) Summarizing the testimony of the expert witnesses at the public hearings, this report concluded:

      [C]urrent indigent defense systems often operate at substandard levels and provide woefully inadequate representation.... Witnesses described programs bereft of the funding and resources necessary to afford even the most basic tools essential for an effective defense. As a result, literally thousands of accused poor persons who are unable to afford counsel are denied, either entirely or in part, meaningful legal representation. (46) The ABA divided the problems of most indigent defense systems into three distinct parts: lack of adequate funding, inadequate legal representation, and structural defects in indigent defense systems. (47) Inadequate funding is most frequently cited as one of the major problems of indigent defense systems, (48) and that lack of funding is the greatest factor adversely affecting quality of representation. (49) During the ABA's public hearings, witnesses representing twenty-two states reported "grave inadequacies" in the available resources for indigent defense. (50) This lack of funding precipitated inadequate attorney compensation (51) and a lack of essential resources such as expert, investigative, and support services, (52) and often led to a sizable resource disparity between the prosecution and the defense. (53)

      Problems with inadequate legal representation include the fact that client/lawyer interactions often begin minutes before the trial and end moments later when the defense attorney tells the client what plea deal has been negotiated, (54) and the attorney's lack of investigation, research, and zealous advocacy. (55) Structural defects in indigent defense systems include lack of...