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Public Defender Funding: The Right-to-Counsel Crisis


Created on December 06, 2016



Our Constitution guarantees a right to counsel to criminal defendants who cannot afford an attorney. However, over fifty years after the Supreme Court announced this rule in Gideon v. Wainright, there is nearly a uniform consensus that the country's public defender systems are failing. In states as disparate as California, Idaho, Louisiana, and New York, people accused of crimes languish in jail for months without an attorney, or are assigned attorneys with caseloads well above accepted ethical norms. The result is a much-maligned system of "meet-em and plead-em," where defendants take plea bargains after spending as little as a few minutes with their lawyers.

              While there is reasonable agreement on what constitutes basic, effective representation, the harder questions are who is responsible for paying for a constitutional system, and to what degree are these entities accountable for systemic deficiencies. The Supreme Court has made clear that states are ultimately responsible, but without providing specific guidelines on how states are to satisfy the constitutional obligation. In response, states have used a number of approaches that basically divide into two categories: 1) centralized funding from the state budget and 2) delegation of funding responsibilities to counties and localities.  Lawsuits in recent years have challenged both funding schemes, with varying and arguably conflicting results.

              This course examines the theoretical contours of the right to counsel, surveys the current state of public defender delivery systems, and analyzes the extent to which the courts have recognized systemic challenges when states allegedly underfund the public defender function.

Learning Objectives: 

  1. Understand the basic Constitutional requirements that the United States Supreme Court has placed on states to provide public defenders for those unable to afford counsel
  2. Review the most widely accepted metrics for evaluating whether public defender delivery systems are properly funded, including workload and performance standards
  3. Discuss representative lawsuits challenging public defender systems at the state and local level, and compare and contrast the nature of the deficiencies alleged and the legal theories for redress

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