Monday, April 20, 2020
Irene Joe (University of California, Davis - School of Law) has posted Structuring the Public Defender (Forthcoming in the Iowa Law Review 2021) on SSRN. Here is the abstract:
The public defender may be critical to protecting individual rights in the U.S. criminal process, but state governments take remarkably different approaches to distributing the services. Some organize indigent defense as a function of the executive branch of state governance. Others administer the services through the judicial branch. The remaining state governments do not place it within any branch of state government, they delegate its management to local counties. This administrative choice has important implications for the public defender’s efficiency and effectiveness. It influences how the public defender will be funded and also the extent to which the public defender, as an institution, will respond to the particular interests of local communities.
So, which branch of government should oversee the public defender? Should the public defender exist under the same branch of government that oversees the prosecutor and the police – two entities that the public defender seeks to hold accountable in the criminal process? Should the provision of services be housed under the judicial branch which is ordinarily tasked with being a neutral arbiter in criminal proceedings? Perhaps a public defender who is independent of statewide governance is ideal even if that might render it a lesser player among the many government agencies battling at the state level for limited financial resources.
This article answers this question about state assignment by engaging in an original examination of each state’s architectural choices for the public defender. Its primary contribution is to enrich our current understanding of how each state manages the public defender function and how that decision influences the institution’s funding and ability to adhere to ethical and professional mandates. It goes further by concluding that the public defender should be an important executive function in this modern era of mass criminalization and articulating modifications that would improve such a state design by insulating it from pressure by other system actors.