WASHINGTON — Many studies have documented nationwide problems with indigent criminal defense, but a new study, saying reforms are more urgent than ever, recommends that defenders reject new cases when faced with excessive caseloads; lawsuits seeking systemic reforms should be filed when other options fail, and appellate advocates and others should press the courts for a new test for determining ineffective assistance of counsel.
The Constitution Project’s National Right to Counsel Committee, formed in 2004, recently released its examination of whether criminal defendants and juveniles charged with delinquency receive adequate legal representation when they can’t afford to hire lawyers — and its recommendations for achieving lasting reforms.
The committee, whose members share judicial, prosecution, defense, academic, law enforcement, policymaking and victim experiences, reported that although there has been considerable progress since the U.S. Supreme Court’s landmark right-to-counsel ruling, Gideon v. Wainwright in 1963, the evidence is “overwhelming” that jurisdictions that have done reasonably well in the indigent defense area are in a distinct minority.
“In most of the country, notwithstanding the dedication of lawyers and other committed staff, quality defense work is simply impossible because of inadequate funding, excessive caseloads, a lack of genuine independence, and insufficient availability of other essential resources,” the report states.
Among its recommendations for systemic reforms, the committee called for the following:
• Defense attorneys and defender programs should refuse to compromise their ethical duties and, therefore, should refuse to continue representation or accept new cases for representation when faced with excessive workloads that will lead to a breach of their professional obligations.
• Prosecutors should adopt open-file discovery policies in order to promote the fair administration of criminal and juvenile justice.
• When indigent defense systems require defense attorneys to represent more clients than they can competently represent or otherwise fail to assure legal representation in compliance with the Sixth Amendment, litigation to remedy such deficiencies should be instituted. This litigation should be instituted pretrial on behalf of all or a large class of indigent defendants. And, whenever possible, litigation should be brought by disinterested third parties, such as private law firms or public interest legal organizations willing to serve as pro bono counsel, who are experienced in litigating major, complex lawsuits and accustomed to gathering and presenting detailed factual information.
• The Supreme Court’s Strickland two-pronged test for determining ineffective assistance of counsel should be replaced by a straightforward test: Has the accused received “competent” and “diligent” representation, as required by the rules of professional conduct adopted by the legal profession? Lawyers who provide representation in appellate and post-conviction cases and organizations that advocate as amicus curiae should urge the Supreme Court and state supreme courts to adopt a new test.
• The federal government should establish an independent, adequately funded National Center for Defense Services to assist and strengthen the ability of state governments to provide quality legal representation.
• Federal financial assistance through grants or other programs as provided in support of state and local prosecutors should also be provided in support of indigent defense, and the level of federal funding for prosecution and defense should be substantially equal.
• States should establish a statewide, independent, nonpartisan agency headed by a board or commission responsible for all components of indigent defense services. The board or commission should establish and enforce qualification and performance standards for defense attorneys in criminal and juvenile cases who represent persons unable to afford counsel.
The committee’s honorary co-chairs are former vice-president Walter F. Mondale, who, as the then-attorney general of Minnesota, organized a remarkable amicus curiae brief joined by 23 states on behalf of Clarence Earl Gideon. The other is former FBI Director and U.S. District Judge William S. Sessions. The committee’s co-chairs are Timothy K. Lewis, a former U.S, circuit court judge; Rhoda Billings, a former chief justice of the North Carolina Supreme Court; and Robert M. A. Johnson, chief prosecutor of Anoka County, Minn., and a former president of the National District Attorneys Association.