Academic journal article Missouri Law Review

Epiphenomenal Indigent Defense

Academic journal article Missouri Law Review

Epiphenomenal Indigent Defense

Article excerpt


There are some much-studied, recurring social events and behaviors that, although centrally important to public policy and social life, have proven intractable to explanation and prediction. As currently salient examples, consider stock market crashes and recessions. Economists cannot consistently see them coming nor explain them after the fact in consistent detail. (1) Another example is crime rates, which rise, and in recent decades fall, without any discernable strong causal link to familiar variables such as employment or imprisonment rates. (2) This Article describes why we can add state funding for indigent defense counsel to that list and what this conclusion means for indigent defense funding policy.

States are required to provide indigent defense in a specific set of cases--including felonies, misdemeanors for which defendants are sentenced to incarceration, and appeals (3)--and the minimum quality of that representation is nominally constitutionally guaranteed as well. (4) Those mandates should lock indigent defense systems, and, at least roughly, indigent defense budgets, into a fairly stable and direct relationship with other components of criminal justice--particularly prosecutor staffing, courts' criminal caseloads, and prison populations. Yet they do not.

Two features of indigent defense stand out. First, indigent defense is perennially underfunded in many jurisdictions. Second, and more interestingly, indigent defense systems vary greatly over time and space. Budgets rise and fall from year to year within a state, and the budgets and designs of indigent defense systems vary greatly across states and even among jurisdictions within the same state. It is that perpetual variation and instability that puts American indigent defense policy in the category of the unpredictable. Indigent defense provision does not function under the few identifiable variables that usually characterize strong, specific, well-enforced constitutional mandates. Rather, its history, nearly forty years after Gideon, rests on myriad influences, events, and variations in government.

Indigent defense is epiphenomenal: it is a secondary effect of these political events and variations, rather than a stable function of constitutional and statutory mandates that closely tie it to the criminal justice systems' other components. Until that status changes--and there are nascent signs that it could--indigent defense policy will continue to have long periods of inadequate service with systemic crises that are periodically interrupted by reform efforts typically prompted by litigation or intervention of influential groups, such as state bar associations and state judiciaries. The remainder of this Article develops this description of the political instability of defense funding and points to some promising state approaches to indigent defense that hold potential for moving defense provision into a more stable, less volatile relationship with the criminal justice systems of which it is a part.


First, consider indigent defense in relation to a related component of criminal justice systems: incarceration rates. While the overall American incarceration rate is several times higher than that of any other industrialized democracy, (5) state sentencing practices nonetheless vary substantially. The two states with the lowest incarceration rates, Maine and Minnesota, have rates that are less than a quarter of those found in the highest-incarceration American state, Louisiana. (6) All U.S. states have high incarceration rates by European standards. (7)

Indigent defense systems vary tremendously among states, though in ways that are difficult to measure quantitatively and to rank ordinally. Despite a trend toward common models--such as more state, rather than local, funding of indigent defense and more supervision by state boards or agencies--states still use a wide array of models for providing indigent defense. …

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