Wednesday, February 2, 2011
Jonathan Rapping (Atlanta's John Marshall Law School) has posted National Crisis, National Neglect: Realizing Justice Through Transformative Change (Journal of Law and Social Change, Vol. 13, p. 331, 2009-2010) on SSRN. Here is the abstract:
Since the Supreme Court decided Gideon v. Wainright nearly 50 years ago, there has been a Constitutional mandate that people accused of crimes are entitled to effective assistance of counsel. Despite that mandate, competent representation for poor people remains the exception. The Court’s response to this development has only compounded the crises, as the legal standards developed to determine when lawyers fall below the constitutional floor encourage incompetent representation. States have also proven to be inadequate guardians of this precious right as lawyers for the poor are excused for failing to live up to their professional obligations to their clients. While indigent defense advocates frequently cite financial and structural reform efforts as the panacea, few commentators appreciate the role that the culture of injustice, that has become acceptable in criminal justice systems nationally, plays in perpetuating the status quo. In this paper I argue that there is a role for the federal government to play in ensuring that the right to counsel, a principle central to the value system of our nation, is realized by all of its citizens. I further argue that an effective strategy for achieving the promise of Gideon must include investment in the human resources (i.e. the public defenders) necessary to carry out this mandate. Through the development of a generation of public defenders who embrace the values consistent with excellent representation, we can ensure that these lawyers for the poor will both begin to deliver on Gideon’s promise immediately as well as develop into the future leaders necessary to hold the states accountable for their failures to meet their constitutional obligations. In this paper I discuss the work of the Southern Public Defender Training Center, an organization dedicated to building a community of reformers through the recruitment, training, and mentoring of a new generation of public defenders in the region. I then introduce a bold new initiative called the Public Defender Corps, committed to building on the work of the SPDTC to create a national movement through a public defender fellowship program and suggest that there is a significant role for the federal government to play in supporting this effort. Finally I suggest that without an effort to groom a new generation of public defenders committed to the work and the clients they serve, financial and structural fixes, while necessary, will not be sufficient to bring about the reform needed. I advocate a national push to transform the existing culture of indigent defense as part of any comprehensive reform strategy.