Justice Denied

The Brooklyn Law School Library has in its collection Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (Call #KF336.A3 N38 2009). This Report by the Constitution Project and the National Legal Aid & Defender Association examines how the American justice system provides counsel in criminal and juvenile delinquency cases to individuals who cannot afford lawyers. Detailing how indigent defense systems across the nation operate with far too little money, the report states that public defenders carry excessive caseloads, have inadequate access to investigative and expert assistance, and are often unable to counsel their clients effectively and in a timely manner. With defense counsel working under such circumstances, they are often unable to provide zealous representation and may even fail to satisfy their professional and ethical obligations.

There are a number of suggestions to address the inadequacy of indigent defense. One of the most interesting comes from two law professors, NYU Professor Stephen J. Schulhofer and Santa Clara University Professor David D. Friedman, proposing a voucher system for indigent criminal defense. A Cato Policy Analysis, Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System proposes a free market for defense services, one that would function in the same way that the existing market functions for affluent defendants who are able to retain their own counsel. It addresses the conflicts of interest in the current system where the defendant’s attorney is chosen by the state and argue that freedom of choice for the indigent defendant can produce gains for both the accused and for the public at large. The authors also discuss how to implement such a system and why it can be expected to provide a practical and effective cure for many of the major ills of indigent defense organization.

Another approach to the issue of legal representation for poor criminal defendants is a proposal for new federal legislation in an article by Cara H. Drinan, The National Right to Counsel Act: A Congressional Solution to the Nation’s Indigent Defense Crisis, 47 Harv. J. on Leg. 487 (2010). The article proposes new federal legislation to address the chronic inadequacies of public defense systems. It cites the New York litigation in Hurrell-Harring et al. v. State of New York challenging New York State’s failure to provide adequate public defense services. For more information on that lawsuit, including court documents, see the New York Civil Liberties Union webpage.