State constitutional challenges to indigent defense systems.

• Author: Hanlon, Stephen F.
• Position: Broke and Broken: Can We Fix Our State Indigent Defense System?

1. INTRODUCTION

   For many years, the primary vehicle that advocates used to protect the fundamental right of the accused to the effective assistance of counsel was the Sixth Amendment to the united States constitution, as incorporated to the states by the Fourteenth Amendment. For some time, most obviously during the Warren court years, this federal strategy proved fruitful; indeed, it resulted in a series of landmark decisions by the united States Supreme court that impact indigent defense systems to this day. A subsequent sea change in the Court's jurisprudence, however, which placed great emphasis on federalism, particularly the doctrines of justiciability and abstention (or constitutional avoidance), made it increasingly difficult for litigants to secure basic constitutional protections.

   Justice William J. Brennan, Jr., who foresaw the turning tide, advised civil rights advocates to consider an alternative strategy: using state constitutional guarantees as the means to provide greater protections to citizens. This Article picks up where Justice Brennan left off, identifying some of the barriers presented by the new federalism, specifically in the context of indigent defense systems, and outlining how some states have managed to successfully circumvent these barriers in order to secure constitutional protections for their citizens--protections more expansive than the basic guarantees in analogous provisions of the federal Bill of Rights.

2. JUSTICE BRENNAN'S MODEST PROPOSAL

   In 1977, Justice Brennan published an article in the Harvard Law Review that was as powerful as it was brief. In it, he considered the role that state constitutions play in the protection of individual rights. (1) Justice Brennan explained that during the Warren court years, as federal protection of individual rights was expanded, neither litigants nor judges were compelled to base their claims or decisions on state constitutional grounds. (2) Justice Brennan argued, however, that given subsequent trends in the Court's jurisprudence, civil rights advocates should not rest on their laurels. Instead, he advised them to lessen their reliance on federal constitutional interpretation and look to state constitutional law. (3) Justice Brennan was especially concerned with the post-Warren court trend of retreating from prior interpretations of the federal Bill of Rights, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This retreat occurred in a series of decisions involving the doctrines of jurisdiction, justiciability, and remedy, which operated to bar the federal courthouse door to litigants "in the absence of showings probably impossible to make." (4) Justice Brennan especially lamented Younger v. Harris (5) and its resulting doctrine, which he envisaged would have a particularly adverse affect on "litigants most in need of judicial protection of their rights--the poor, the underprivileged, the deprived minorities." (6)

   Justice Brennan devised a strategy premised on the belief that state constitutions could provide more expansive protections than those available under analogous provisions of the Bill of Rights. (7) Because principles of federalism shield independent and adequate decisions by state courts from federal court review, advocates could achieve greater relief in state court--and secure it--even in the face of the Court's shifting jurisprudence on identical issues. (8)

   Describing state constitutions as "a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law," (9) Justice Brennan examined the United States Supreme Court's remarkable series of decisions from 1962 to 1969. These decisions expanded the guarantees of the Bill of Rights with respect to equal protection and due process, and in particular, guarantees binding upon the states and limiting state action. (10) In Justice Brennan's view, the Court's decisions reflected "the enforcement of the Boyd principle with respect to application of the federal Bill of Rights and the restraints of the [D]ue [P]rocess and [E]qual [P]rotection [C]lauses of the [F]ourteenth [A]mendment."11 Concluding his analysis of the jurisprudential thread in these decisions, Justice Brennan articulated a theory that would drive constitutional debate for the next several decades:

   [T]he genius of our Constitution resides not in any static meaning that it had in a world that is dead and gone, but in the adaptability of its great principles to cope with the problems of a developing America. A principle to be vital must be of wider application than the mischief that gave it birth. (12) This principle would impact not only federal constitutional debate but also drive state constitutional interpretation. What Justice Brennan detected was an emerging trend among state courts to construe state constitutional provisions in a manner that would guarantee state citizens even greater protections than they would have under identically phrased federal provisions. Several then-recent rulings of the supreme courts of California, New Jersey, Hawaii, Michigan, South Dakota, and Maine, rejecting decisions of the United States Supreme Court as unpersuasive in interpreting corresponding provisions in the various state constitutions, served to illustrate Justice Brennan's point. (13)

   According to Justice Brennan, these decisions underscored the tremendous power that state courts have to ensure that avenues remain open for litigants to redress violations of their civil rights and liberties. (14) Most importantly, state courts grounding their decisions in state law need not apply federal justiciability principles of standing, mootness, or ripeness, principles consistently employed to deny litigants access to the federal courts. Such state court decisions cannot be overturned by, and will not even be reviewed by, the United States Supreme Court, which is utterly without jurisdiction to review state decisions resting on independent and adequate state law grounds. (15)

3. JUSTICE BRENNAN'S CONCERNS MATERIALIZE IN THE CONTEXT OF INDIGENT DEFENSE FUNDING

   In 1986, a plaintiff class comprised of indigent defendants and their attorneys brought a lawsuit challenging the constitutionality of Georgia's criminal defense system. (16) The certified class consisted of all indigent persons charged, or who would be charged in the future, with criminal offenses in Georgia state courts, as well as all attorneys who represented, or would represent, such indigent defendants in Georgia courts. (17) The plaintiffs claimed "that systemic deficiencies including inadequate resources, delays in the appointment of counsel, pressure on attorneys to hurry their clients' cases to trial or to enter a guilty plea, and inadequate supervision in the Georgia ... indigent defense system," all operated "to deny indigent criminal defendants their [S]ixth [A]mendment right to counsel, their due process rights under the [F]ourteenth [A]mendment, their right to bail under the [E]ighth and [F]ourteenth [A]mendments, and [their right to] equal protection of the laws guaranteed by the [F]ourteenth [A]mendment." (18) Plaintiffs sought an order enjoining the governor and all Georgia judges responsible for providing assistance of counsel to indigents criminally accused in the Georgia courts to "meet minimum [federal] constitutional standards in the provision of indigent criminal defense services." (19)

   Siding with the state defendants, the district court dismissed the complaint, finding that the plaintiffs failed to satisfy their burden of proving deficiency and prejudice consistent with the constitutional minima set forth in Strickland v. Washington. (20) on appeal, the United States Court of Appeals for the Eleventh Circuit reversed, holding that as to the prospective protection of the Sixth Amendment right to counsel, as opposed to retroactive efforts to vacate final convictions or sentences, the Strickland performance-and-prejudice inquiry is inapposite. (21)

   Rather than requiring a showing that ineffective assistance of counsel would be inevitable for each member of the class under the Strickland test, the Eleventh Circuit held that in this type of civil action seeking prospective injunctive relief, "the plaintiffs' burden is to show 'the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law.'" (22) Applying this standard, the Eleventh Circuit held that the plaintiffs' allegations of deficiencies were sufficient to state a claim for prospective injunctive relief. (23)

   The Eleventh Circuit's decision was a tremendous victory and brought the class one step closer to securing landmark reform in the Georgia criminal justice system. Yet, just when it appeared that litigants would secure another victory in the protection of civil rights in federal court, Justice Brennan's 1977 concerns about the evolution of the abstention, or avoidance, doctrine in federal courts began to materialize. on remand following denial of certiorari to the United States Supreme Court, the district court once again dismissed the complaint, this time on the grounds that Younger abstention was appropriate. (24) The Eleventh Circuit affirmed the district court's decision on appeal. (25) The Younger abstention doctrine not only undid the Luckey plaintiffs' 1988 victory but also went on to plague every attempt in subsequent decades to address the nation's growing problem with grossly underfunded state indigent defense systems in the federal judicial system. Overcoming Younger abstention would prove to be a daunting task. (26)

4. STATE COURT INDIGENT DEFENSE LITIGATION

   1. The Florida Model

      The Florida Supreme Court has a long and distinguished history of dealing with the persistent problem of chronic legislative underfunding of its indigent defense system. That court has employed several important doctrines to address this problem.

      In...