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.