Wednesday, April 30, 2014
David Rudovsky (University of Pennsylvania Law School) has posted Gideon and the Effective Assistance of Counsel: The Rhetoric and the Reality (Law and Inequality: A Journal of Theory and Practice, Vol. 32, 2014 Forthcoming) on SSRN. Here is the abstract:
There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to provide adequate remedial measures to ensure that appointed counsel have the time and resources necessary to meet their constitutional obligations.
I propose a litigation strategy as a means of confronting the issues of funding and resources that incorporates both Sixth Amendment and professional responsibility standards to enable courts to order structural relief in cases of systemic deficiencies.
The article concludes by discussing three cases from Pennsylvania that show both the promise and the difficulties of litigation in achieving systemic reform.