Academic journal article Harvard Law Review

Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems

Academic journal article Harvard Law Review

Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems

Article excerpt



This notice was posted in a Covington, Kentucky, courthouse in the late 1980s, in the hope that a lawyer might be found to defend the pending capital case of Gregory Wilson. In Covington, the statutory limit on funding for defense counsel in capital cases was $2500 and the local indigent defense program could not find a lawyer willing to defend the case for such a paltry sum. When the head of the indigent defense program asked the judge to order additional compensation to secure a defense lawyer, "the judge refused and suggested that the indigent defense program rent a river boat and sponsor a cruise down the Ohio river to raise money for the defense." (3)

Many courts have been hesitant to acknowledge the ways in which the realities of indigent defense affect the assistance a defendant actually receives. Courts have deemed effective lawyers who were unaware of current governing law in the case at hand, lawyers who were intoxicated at the time of trial, and lawyers who were asleep. (4) Perhaps the most pervasive problem affecting indigent defendants, however, is not that their lawyers are incompetent, but that those lawyers lack adequate resources to defend their clients. Today's public defenders are underfunded and overburdened. Their caseloads and workloads have risen to crushing levels in recent years, and caps on funding both for individual cases and for overall compensation levels have effectively rendered many lawyers ineffective. Due to the political unpopularity of criminal defendants and their lack of financial and political capital, state legislatures are unlikely to allocate significant attention or resources to the problem of indigent defense, leaving courts with the task of creating a constitutionally mandated remedy.

Although scholars and practicing attorneys have acknowledged the effects of this funding shortage, (5) the Supreme Court has yet to address the specific issue of indigent defense funding. The Court's landmark case on effective assistance of counsel, Strickland v. Washington (6), established a two-prong test for ineffective assistance of counsel: a defendant must show that his counsel's performance was deficient and that, but for his counsel's deficient performance, the result of the proceeding would have been different. (7) This standard suffers from two major flaws as far as funding is concerned. First, the Strickland standard is not structured to accommodate an argument related to funding. Because the Strickland test is ends-oriented --in that it focuses on the lawyer's performance and the ultimate judgment in a case--and because funding is more of a means, funding is unlikely to arise in a discussion confined to the Strickland two-prong test. Only when a lack of funding is so severe that it causes a deficient performance as defined by Strickland--a threshold that has proven difficult to meet (8)--does the test proceed to its second step; there is no way in which to address the generally detrimental effect that underfunding has on the quality of defense lawyering an attorney is able to provide. (9)

Second, the Strickland standard is, by its nature, an ex post analysis; therefore, it cannot be used preemptively to challenge the effectiveness of an attorney, regardless of the limitations on time or resources that may hamper the attorney's ability to provide an adequate defense. Thus, while Strickland imposes a high bar once an attorney has failed a defendant, no recourse is available to the defendant ex ante, even when it is apparent that an attorney will inevitably provide an inadequate defense.

Because Strickland appears to be the Supreme Court's last word on the issue, discussions about the impact of funding on effectiveness have moved primarily into the state courts. This Note examines three notable and celebrated cases--State v. Peart, (11) State v. Lynch, (12) and State v. Smith (13)--in which courts have been receptive to defendants' allegations that a lack of funding or resources rendered their attorneys' assistance ineffective. …

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