Abigail Hollinger · November 2020
88 Geo. Wash. L. Rev. Arguendo 195
Every defendant in the United States is entitled to effective legal representation when facing a crime punishable by imprisonment. When a defendant cannot afford an attorney, the government is required to provide one. At least, that is what the Supreme Court has said. Reality looks very different. The Justice Department estimates that up to 90% of criminal defendants cannot afford to hire an attorney. But studies show that only about a quarter of indigent defense systems have enough funding to effectively represent assigned defendants.
When systems are underfunded, defendants face long waits before being assigned attorneys. If a defendant decides to stand trial rather than take a plea, the defendant will still have to compete with other clients for time with an attorney once one is assigned. Overworked attorneys will be less able to craft a strong defense, attend to witnesses, and explore leads. Defendants might not even see their attorney before trial, and their cases might be assigned to attorneys who have never handled a criminal case before.
The principle reason for chronic underfunding of indigent defense is known as the political process failure, which occurs when the legislative process fails to protect individual rights. Because legislatures do not have political incentives to protect indigent defendants’ right to effective counsel, legislatures do not adequately fund indigent defense. However, the Constitution guarantees a right to effective representation for a fundamental reason: without it, our justice system does not work. Poor defendants no longer “stand[] equal before the law.”
In the face of a political process failure, the Supreme Court has recognized the judiciary’s heightened responsibility to protect individual rights. Therefore, this Note proposes a judicial remedy to the legislative problem of underfunding indigent defense services by preventing the assignment of indigent defense cases to overburdened attorneys and requiring the release of indigent defendants from jail whose cases are not assigned to counsel in a timely manner. This creates a choice for legislatures: either adequately fund indigent defense services so there is enough money to provide effective representation to every indigent defendant or face public backlash when defendants are released from jail with pending charges. Only by altering the political incentives will the constitutional right to effective representation be protected.
