Saturday, May 28, 2011
McKenna on Preconviction Indigent Defense Reform
William H. W. McKenna has posted Comment: The Gideon Split: Preconviction Indigent Defense Reform Litigation in Hurrell-Harring and Duncan on SSRN. Here is the abstract:
Now forty-nine years after the U.S. Supreme Court’s decision in Gideon v. Wainwright (1963), many states continue to fail to effect its guarantee. Recently though, some have challenged states’ systemic neglect of indigent defense through pre-conviction class action suits seeking prospective relief, like the plaintiff classes in Hurrell-Harring v. State (N.Y. 2010) and Duncan v. State (Mich. 2010). This Comment argues pre-conviction systemic Sixth Amendment claims like those are not properly treated as ineffective assistance of counsel claims subject to Strickland, which would categorically bar them, but rather they present the (justiciable) question of whether a state has enabled Gideon's guarantee at all. When states systemically neglect indigent defense, they prevent public defenders from fulfilling their ethical obligations in individual cases, thereby constructively depriving indigent defendants’ Sixth Amendment right to counsel.
the way the lawyer "bar" schemes are set up, state supreme courts can't mandate taxpayer to fund indigent defense, but they can "encourage" bar members to provide indigent defense. and they should do so to eliminate the inherent conflict of interest created when the state funds both the prosecution and defense of an accused indigent. since 1963, lawyer industry have greedily and self servingly ignored this issue to line its own pockets with the deep-pocketed taxpayer treasury loot. yo law profs - debate that.
Posted by: concernedcit | May 31, 2011 4:50:00 AM
gideon redundant. constitution already provided right to counsel. thanks to obama healthcare debacle, taxpayers have been awakened to fact that they have no mandate to fund legal defense. in fact, they shouldn't as it creates conflict of interest. so to all you lawyers - pony up and fully fund indigent defense costs.
Posted by: concernedcit | May 31, 2011 4:36:01 AM