Ensuring the ethical representation of clients in the face of excessive caseloads.

AuthorJoy, Peter A.
PositionBroke and Broken: Can We Fix Our State Indigent Defense System?

    The lack of adequate indigent defense funding at the state and local levels has caused a crisis. In state after state, public defenders face overwhelming caseloads that inevitably make quality legal representation for clients much more of a dream than a reality. (3) Regardless of the promises in the U.S. federal and state constitutions, poor persons charged with crimes are increasingly unequal before the law. As the title of this Symposium simply states, indigent defense systems are "broke and broken." The criminal justice system is not functioning fairly, ethically, and within constitutional mandates.

    While there are several potential reforms that would fix the problem of excessive caseloads for public defenders, inadequate indigent defense systems have been widespread and chronic. This Article contends that current conditions will not change until and unless there is greater focus on the ethical obligation of the legal profession to ensure quality representation for the poor. In addressing the ethical dimensions of the crisis in indigent defense services, this Article focuses on the ethical responsibilities of supervising attorneys and managers of public defender programs to ensure quality representation of clients in the face of crushing caseloads.

    This Article is divided into three substantive parts. First, I begin with a short discussion of the most important criminal justice right guaranteed to each of us under the Bill of Rights--the Sixth Amendment right to assistance of counsel. (4) For most Americans, the right to counsel is obtained through indigent defense providers, (5) and the quality of the representation is inextricably tied to three lesser known rights, or perhaps wishes, found in the Public Defender Bill of Rights: "[t]he right to meaningful, weighted caseload standards"; "[t]he right to judges who understand my [the public defender's] role in the [justice] system"; and "[t]he right to a boss who will back me up." (6) Next, I focus on the ethical implications for line public defenders, (7) their supervising attorneys, and managers of public defender programs. Finally, I conclude by discussing strategies for public defender supervising attorneys and managers to consider as tools to fulfill their ethical obligations and to advance the right to counsel for their clients.


    The right to counsel was a revolutionary concept when it was made part of the U.S. Constitution. Early English common law prohibited the accused facing charges that carried the penalty of death, including felonies such as murder, robbery, or treason, from hiring a lawyer to assist with the defense. (8) Denying the accused counsel led to swift prosecutions and certain punishment and left the authority of the state unquestioned. (9) The accused could hire counsel only if facing minor charges, which included misdemeanors such as libel or battery, for which the penalties were merely incarceration or loss of property. (10) The Treason Act of 1695 modified this common law arrangement and permitted those accused of treason representation by counsel. (11) By the time the framers of the U.S. Constitution inserted the Sixth Amendment into the Bill of Rights, the right to counsel in England was still limited to misdemeanor and treason cases, though in practice English judges often permitted retained counsel to play some limited role in felony cases after the passage of the Treason Act. (12)

    In the United States, initially the right to counsel under the Sixth Amendment was confined to federal cases, and the right guaranteed only that the accused could retain counsel. (13) The right to counsel began to expand in the early 1930s when the Supreme Court decided Powell v. Alabama, which guaranteed the right to government-provided counsel in capital cases in state courts. (14) Six years later, in Johnson v. Zerbst, the Court extended the right to appointed counsel for all federal crimes where incarceration is a possible punishment. (15) In Johnson v. Zerbst, the Court reasoned that assistance of counsel is "an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty." (16)

    The next major step toward recognizing the importance of counsel for the accused was the Supreme Court's decision nearly thirty years after Johnson v. Zerbst in Gideon v. Wainwright, which guaranteed an appointed lawyer to the accused facing felony charges in state court when the defendant is unable to pay for legal representation. (17) Subsequent to Gideon, a series of Supreme Court decisions found that the right to counsel for the poor also applied when one faced possible deprivation of liberty through a jail or prison sentence in misdemeanor cases, (18) juvenile matters, (19) other cases involving possible incarceration, (20) and in the first state appeal as a matter of right. (21)

    Today, thanks to Gideon, public defenders or court-appointed private attorneys represent those unable to afford a privately retained lawyer--consisting of approximately 80% of criminal cases. (22) While Gideon established that an indigent person has the right to appointed counsel, the key question that has emerged is what will be the quality of representation that appointed counsel provides to the poor?

    1. Constitutional Standard for Adequate Assistance of Counsel

      When Gideon was decided, the standard for ineffective assistance of counsel in federal courts was very limited. Using a Due Process Clause and Fifth Amendment analysis, federal circuits required that "the circumstances surrounding the trial shocked the conscience of the court and made the proceedings a farce and a mockery of justice." (23)

      This "farce and mockery" standard began to change in 1970, when the Supreme Court stated in dicta that "the right to counsel is the right to the effective assistance of counsel," (24) and the Fifth Circuit held "counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." (25) More circuits abandoned the "farce and mockery" standard. Ten years after Gideon, Judge Bazelon, writing for a panel of the U.S. Court of Appeals for the District of Columbia Circuit in 1973, held in United States v. DeCoster that "a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." (26) By 1983, all of the circuits had adopted this new standard. (27)

      In addition to articulating the reasonably competent assistance of counsel standard, the DeCoster decision outlined ways both to measure whether counsel was competent and to allocate the burden of proof. (28) Judge Bazelon's decision held that courts should measure the competency of defense counsel according to the American Bar Association (ABA) Standards for Criminal Justice. (29) Upon finding a substantial violation of any of the Standards, DeCoster shifted the burden of proof to the government to show lack of prejudice to the defendant. (30)

      The proper allocation of the burden of proof is critical to a meaningful effective assistance of counsel standard, (31) and Judge Bazelon reasoned that shifting the burden to the government to prove lack of prejudice once substandard representation took place was necessary for two reasons. (32) First, the government has the burden of proving guilt, and requiring a defendant to prove prejudice would be tantamount to requiring the defendant to prove innocence. (33) "Second, proof of prejudice may well be absent from the record precisely because counsel has been ineffective." (34) Bazelon's decision pointed out that many failures to act, such as failure to investigate the case, interview witnesses, or call witnesses, are absent from the record when counsel renders inadequate assistance. (35)

      Some federal circuits followed Judge Bazelon's approach, while other federal circuits required the defendant to show prejudice when making an ineffective assistance of counsel claim. in Strickland v. Washington, the Supreme Court settled the debate by holding that Sixth Amendment ineffective assistance of counsel claims require the defendant to prove objectively unreasonable performance by the lawyer and prejudice--a reasonable probability that the lawyer's inadequate performance adversely affected the outcome of the case. (36) This two-part standard, particularly the requirement that the lawyer's inadequate performance must be proven to have adversely affected the outcome of the case, is, as Judge Bazelon opined, a very difficult, and at times impossible, standard to meet when counsel has provided inadequate representation. (37)

      The prejudice requirement also raises a number of serious public policy concerns. If poor lawyering is present and no prejudice is found, the poor lawyering is left unremedied when a new trial is denied. This result means that our criminal justice system tolerates less than competent lawyering and permits poor lawyering to go undeterred, calling into question whether the Sixth Amendment guarantees a meaningful right for the poor. This systemic tolerance for poor lawyering erodes the faith of the defendant and the public in the fairness and integrity of the criminal justice system. A prejudice requirement also assumes we can accurately assess, after the fact, the impact of bad lawyering on the outcome of the case. But such an assessment can be quite difficult. For example, if the lawyer failed to conduct an investigation, how is one to know after the fact what the investigation would have turned up and how it would have affected the outcome of the case? in his dissent in Strickland, Justice Marshall echoed Judge Bazelon's concerns, noting that "it may be impossible for a reviewing court confidently to ascertain how the government's evidence and arguments would have...

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