Sunday, September 26, 2010

Equality and Access to Counsel

Guest Blogger

For the Constitution in 2020 conference on The Future of Criminal Justice.

Darryl Brown

One of the great frustrations of constitutional law’s regulation of criminal adjudication is the failure of Gideon and Strickland to result consistently in states’ providing indigent defense counsel of sufficient quality to assure accurate adjudicative outcomes and a plausibly fair process. The problem with Gideon’s guarantee of counsel is that it is an unfunded mandate to state governments (who often delegate the duty to local governments). Courts are loathe to regulate state funding decisions, and yet states are politically loathe to fund indigent defense sufficiently. The problem with Strickland’s guarantee of adequate representation is that it is designed only as a post-conviction, hindsight assessment of counsel’s performance. In that form, it is deliberately deferential both because of the difficulty of retrospectively assessing a lawyer’s performance and the sunk costs of a completed adjudication process.

The most promising hope in the next decade for remedying this pervasive problem is the growing body of state litigation that challenges Gideon and Strickland violations prospectively rather than retrospectively. In a range of cases with varying contexts, legal theories and remedies, state courts have either entered judgments, or parties have reached settlements, that effectively find under-funded defense counsel systems to be so inadequate that we can safely conclude, even before trial, that defendants will have constitutionally inadequate representation if they have any representation at all. Settlements usually take the form of a state or local government’s agreement to increase defense funding and otherwise provide essential conditions for adequate legal representation, so that the odds of competent representation are greatly increased. Court orders are often in creative in not directly ordering funding increases but instead forcing the indigent defense issue onto a legislative agenda by, for example, presumptively barring prosecutions from proceeding until defendants’ counsel are sufficiently funded to make adequate representation probable.

While this litigation often implies a prospective and structural approach to enforcement of the Sixth Amendment’s right to adequate counsel, state courts are mostly cautious or ambiguous about grounding decisions exclusively on that doctrine. And federal courts have been almost completely silent, because the Younger abstention doctrine keeps them from entertaining claims that would enjoin an ongoing state criminal prosecution. As a result, the most promising means for rejuvenating a demonstrably failing Sixth Amendment doctrine lies in two paths. One is state courts, which could continue to develop this Sixth Amendment doctrine more explicitly. That could allow, and prompt, the U.S. Supreme Court interested in improving American criminal justice to grant certiorari on a state decision and endorse and specify a prospective Strickland doctrine oriented toward pre-trial and systemic remedies. The other is possibility is federal executive-branch enforcement of Sixth Amendment rights in states—an invigorated federal commitment to ensuring counsel for the indigent that tracks existing federal efforts to improve states’ performance on other constitutional guarantees, such as those governing civil rights violations by police.

Darryl Brown is O.M. Vicars Professor at the University of Virginia School of Law. You can reach him by e-mail at brownd at

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