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

Published date25 August 2009
Date25 August 2009
AuthorAlissa Pollitz Worden,Andrew Lucas Blaize Davies
Alissa Pollitz Worden and Andrew Lucas Blaize Davies
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
conflict have played a significant role in states’ indigent defense policy
over the past three decades.
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
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?
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

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