Gideon v. Waiwright,(1) virtually alone in the field of constitutional criminal procedure, enjoys unqualified support across the ideological spectrum.(2) Many critics sympathetic to the defense,(3) however, have complained that the Court betrayed Gideon's promise of effective defense counsel in Shickland v. Washington.(4) Strickland, which requires a convicted defendant to prove that defense counsel's unprofessional errors undermined the reliability of the trial,(5) ranks among the most-cited Supreme Court cases ever decided.(6)
My thesis holds that the Strickland inquiry into counsel's effectiveness ex post should be supplement by an ex ante inquiry into whether the defense is institutionally equipped to litigate as effectively as the prosecution. Courts could make this determination either in collateral civil proceedings to test the effectiveness of the indigent defense system, or in individual criminal cases upon a pretrial motion claiming that effective assistance cannot be rendered in the instant case because of the indigent defense system's deficiencies.
Strickland's critics rightly claim that the current right-to-counsel doctrine is dysfunctional. The root of the problem, however, lies in Gideon's focus on the right to counsel to the neglect of the right to a fair trial. It is indeed the case that the publicly-funded lawyers who represent most criminal defendants are overworked, underpaid, and all too often either inexperienced or burnt out. It is indeed the case that the Strickland test has failed to improve the defense function. It is indeed the case that effective defense representation is the single most important of our system's safeguards against convicting people of crimes they had nothing to do with or of more serious offenses than they actually committed. And it is indeed the case that there is no prospect of legislative action to improve the situation.
The courts should broaden their focus to concentrate on the fairness of the proceedings rather than the absence of identifiable errors by defense counsel. The key obstacle to reform lies in Strickland's inquiry into the effectiveness of counsel after the fact. It is all but ludicrous to ask a reviewing court to assess a record made by counsel to determine how counsel erred. As one might expect, this inquiry has done little to improve the quality of defense representation. The theoretical availability of relief nonetheless undermines the finality of criminal proceedings.
The better approach would ask before proceedings commence whether the defendant's lawyer can effectively represent him. Because the effectiveness of counsel is relative to the opposition, the test should be whether the defendant is represented by a lawyer roughly as good and roughly as well-prepared as counsel for the prosecution. Judges could make this determination either when counsel first enters an appearance for the accused, or in a collateral civil proceeding to test the adequacy of a jurisdiction's system of indigent defense.
The article proceeds through six stages. First, it documents the shortcomings of the indigent defense function in the United States. Second, it explains the poor state of indigent defense by reference to public choice theory: rational legislatures have every political incentive to shortchange indigent defense. The chronic shortage of resources imposes perverse incentives on defense lawyers. Third, the article defends the normative judgment that undersupport of the defense function is unjustifiable. This is despite the fact that elected legislatures permit it to continue and despite the fact that poor people generally need many other things more desperately than they need legal services.
Fourth, the article traces the history of right-to-counsel doctrine, a history that helps to explain why the choice of an ex post approach virtually dictated Strickland's demanding standard. Fifth, the article develops a critique of ex post approaches in general, and of Strickland v. Washington in particular.
Sixth and finally, the article offers the ex ante parity standard as a promising alternative to the current regime. jurisdictions could comply with the parity standard by improving the staffing, increasing the compensation, and expanding the support services of indigent defense lawyers working in traditional public defender, contract, or appointment systems. They could also comply by integrating the functions of prosecution and defense. However it happened, progress toward parity would occur incrementally, and with the support, rather than over the opposition, of legislatures. The parity standard, then, is not a panacea, but it does offer a real prospect of reforming indigent defense through constitutional doctrine.
DESCRIPTION: THE PERMANENT CRISIS
Institutional defense of the indigent confronts a cluster of daunting challenges. Caseloads are enormous, funds are scarce, and the prestige of the work is low. Success is less common than failure and often tinged with moral ambiguity. Hence it is difficult to attract highly-qualified lawyers in the first instance. The pressure of case loads and the cynicism that attends whittling down the sentences of guilty clients make it just as hard to retain as to recruit qualified personnel.
Just a few years after Gideon, the President's Commission on Law Enforcement and Administration of justice described these problems in its landmark report, The Challenge of Crime in a Free Society.(7) The President's Commission noted that:
The shortage of criminal lawyers, which is already severe, is likely to
become more acute in the immediate future. Some of the reasons for this
shortage can be found in the very nature of criminal law practice, with its
generally meager economic rewards and limited security. Most criminal
defendants can pay only a small fee, if any, and only the organized or
professional criminal can provide the steady business of a prosperous
civil clientele. Counsel for the defense must expect to lose more cases
than he wins, not for any reason related to his legal capabilities but
because, as a matter of statistics, most defendants whose cases are not
dropped early in the process are in fact found guilty....
All but the most eminent criminal lawyers are bound to spend much of their
working lives in overcrowded, physically unpleasant courts, dealing with
people who have committed questionable acts, and attempting to put the
best possible construction on those acts. It is not the sort of working
environment that most people choose. Finally, the professional status of
the criminal lawyer tends to be low.(8)
"Defenders," the Commission observed, "are usually paid less than prosecutors, and many prosecutors are badly paid."(9) Every succeeding survey of the defense function has noticed the same problems. The defense function in the United States is in a permanent state of crisis.(10)
In 1973, the National Legal Aid and Defender Association published a study based on site inspections around the country and on questionnaires to judges, prosecutors, and defense lawyers. The study concluded:
[T]he resources allocated to indigent defense services have been found
grossly deficient in fight of the needs of adequate and effective
representation. Relatively few indigent defendants have the benefit of
investigation and other expert assistance in their defense. Their
advocates are overburdened, undertrained, and underpaid, and as recent
studies have shown, the poor have as little confidence in such advocates,
who are often hand-picked by the same authority which pronounces their
sentence, as they do in the inherent fairness of the American criminal
That same year, David Bazelon, the distinguished Chief judge of the Court of Appeals for the District of Columbia Circuit, published a lecture entitled, The Defective Assistance of Counsel.(12) The judge opined that "a great many--if not most--indigent defendants do not receive the effective assistance of counsel guaranteed them by the 6th Amendment."(13) He continued, "I have often been told that if my court were to reverse every case in which there was inadequate counsel, we would have to send back half the convictions in my jurisdiction."(14) Bazelon's jaundiced view may have been too dour, but it may not be attributed to judicial philosophy. Warren Burger pretty much agreed with Bazelon's assessment.(15)
In 1982, Professor Norman Lefstein prepared a report for the American Bar Association's Standing Committee on Legal Aid and Indigent Defendants.(16) He reviewed thirty-seven studies of indigent defense systems.(17) He summarized their findings as follows:
Most of these studies were undertaken by consultants from outside the
jurisdiction evaluated, and in virtually every instance the adequacy
of funding, and the overall sufficiency of resources and defense services
were principal concerns. Sixteen of the studies involved the total state
system for providing defense services, whereas the balance focused on one
or several counties in the state. Altogether the summaries in Appendix F
contain data on all or part of twenty-four states, the District of
Columbia, and Puerto Rico. Taken as a whole, these evaluations of
defense programs, consisting of more than 4,000 pages of reports,
present an exceedingly depressing picture of insufficient defense
financing. Regardless of whether the study was conducted by NLADA, a
private research organization, a bar association, or some other group,
the message was the same: more funds are desperately needed to hire
more lawyers and support staff, to reduce excessive caseloads, to
compensate private lawyers adequately, and to provide for a host of
Lefstein also relied on five new site inspections. These "vividly illustrate [d] the financial difficulties of defense programs."(19)
During the 1980s, the country grew more conservative, with two negative consequences for indigent defense. First, tough-on-crime...