Protecting due process in a punitive era: an analysis of changes in providing counsel to the poor

• Published date: 25 August 2009
• Pages: 71-113
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000047006
• Date: 25 August 2009
• Author: Alissa Pollitz Worden,Andrew Lucas Blaize Davies

PROTECTING DUE PROCESS IN

A PUNITIVE ERA: AN ANALYSIS

OF CHANGES IN PROVIDING

COUNSEL TO THE POOR

Alissa Pollitz Worden and Andrew Lucas Blaize Davies

ABSTRACT

Most criminal justice scholars agree that the past three decades have

witnessed a punitive shift in criminal justice policy, public opinion, and

political rhetoric. Have these political trends also left their mark on policy

approaches to due process rights? The provision of counsel to indigent

defendants is a signature issue in debates over due process rights. The

Supreme Court expanded dramatically the circumstances under which

states were required to provide counsel in the 1960s and 1970s, though

decisions about the implementation of this mandate were left to individual

states. We examine the evolution of indigent defense policy, at the state

and local level, over the past three decades, and ask two questions: First,

did policies evolve in the directions expected by reform advocates?

Second, to the extent that policies developed differently across states, how

can we account for those differences? We find that refomers’ optimistic

projections about structure and funding have not been realized, and that

adoption of progressive policies has been uneven across states. Most

importantly, we find evidence that the politics of ideology and racial

Special Issue: New Perspectives on Crime and Criminal Justice

Studies in Law, Politics, and Society, Volume 47, 71–113

Copyright r2009 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000047006

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conflict have played a significant role in states’ indigent defense policy

over the past three decades.

INTRODUCTION

The past two decades have seen considerable attention paid to what David

Garland has called ‘‘the punitive turn’’ (Garland, 2001): a pattern of criminal

justice policy development beginning in the 1970s characterized by dramatic

shifts toward aggressive enforcement and puni tive sentencing by criminal

justice systems. While the ‘‘punitive turn’’ description is intended to be a

general accountof criminal justice policies, theevidence adduced has generally

come from observations of punishment policies and their consequences. But

criminal justice policy encompasses more tha n punishment. In this paper we

examine changes in policy approaches to due process rights during the period

of the punitive turn, using state-level policies on indigent defense as a case

study. We seek both to shed light upon the development of this understudied

policy area, and to expand understanding of the punitive turn itself by

evaluating its generalizability across policy areas within criminal justice.

During the 1960s and 1970s, the Supreme Court held that the Sixth

Amendment of the United States Constitution implied all indigent criminal

defendants facing the possibility of incarceration were entitled to state-

provided counsel. Because as many as 80% of felony defendants are unable

to afford counsel (Bureau of Justice Statistics, 2001), the form and substance

of indigent defense policy defines the quality and character of justice itself in

an adversarial system (Scheingold, 1974;Feeley, 1983). The implementation

of this mandate, however, was left to the discretion of states, leaving the

development of indigent defense programs and policies open to influence

from state political environments.

The critical importance of counsel for criminal defendants is uncontested;

indeed, Malcolm Feeley maintained, after the conclusion of the ‘‘due

process revolution,’’ that the development of the Sixth Amendment right

was transformative:

Perhaps the single greatest change in the operations of the criminal courts in the past

half century has been the expansion of the right to counsel. Not only has it done the

obvious – provided protections for the accused – it has led to improvements in the

quality of the work of police, prosecutors, and judges (1983, p. 206).

But for poor people accused of crimes, the right to legal counsel has not

always ensured the right to effective representation. Inconsistencies and

ALISSA POLLITZ WORDEN AND ANDREW LUCAS BLAIZE DAVIES72

inadequacies in service provision to indigent defendants across and within

states have drawn the attention of advocates, professional groups, and

policymakers, who have argued that the standards of service provided to

indigent defendants are unacceptably low (Benner & Lynch, 1973;Bureau of

Justice Statistics, 2001;American Bar Association, 2004). Indigent defense

programming across the United States has been described as chronically

underfunded, staffed by lawyers who lack oversight, training, or profes-

sionalism. Meanwhile, these programs impose significant (and sometimes

unpredictable) burdens upon state and local budgets, and they compete

for scarce resources with other policies and programs related to crime and

punishment. As a result, indigent defense policy raises questions about the

cost, fairness, and accountability of criminal courts in providing representa-

tion to the poor.

This paper charts the development of indigent defense during the era of

the punitive turn. We begin with a brief review of the scholarship on the

punitive turn, paying particular attention to theoretical accounts of its

causes and to discussions in that literature of the impact of these changes on

due process policies. We then examine the legal, political, and programmatic

context of indigent defense policy in the 1960s and 1970s, noting the

optimistic expectations and predictions of reform advocates during that era.

Drawing on data spanning three decades, we assess how much progress has

been made toward realization of the reform agenda at the national level.

Lastly, we draw upon existing research into the political forces within states

which have driven punitive policies, and assess the influence of those forces

on indigent defense policies at three points in time during that era. Hence,

our research addresses two questions. First, did the emergence of consensus

on better models for representing the poor presage steady improvements

and equality in legal services over time, or did the broader social turn

toward harsher treatment of suspects and offenders derail policy changes?

Second, did variability in states’ political climates explain the indigent

defense policies at the outset of the period under investigation, and does that

variability account for stability or changes in policies throughout the era?

THE EVOLUTION OF CRIME

POLICY: THE PUNITIVE TURN

Garland characterizes criminal justice policy prior to the 1970s as a

hybrid ‘‘penal-welfare’’ model (Garland, 1985;Garland, 2001; see also

Protecting Due Process in a Punitive Era 73