Indigent Defense Reform: The Role of Systemic Litigation in OperationalizingThe Gideon Right to Counsel

Abstract:     
This paper traces the evolution of litigative efforts to structurally reform state and local indigent defense systems, focusing on the potential of modern class action lawsuits to overcome political process failures at the policy-making and policy-implementation stages.

While in Gideon v. Wainwright, the Supreme Court substantially expanded counsel rights for indigent defendants, it did not reach the difficult question of how such rights ought to be administered. The task of operationalizing and giving content to the Gideon right to counsel therefore fell upon state and local policy-makers. As some jurisdictions failed to respond to growing pressures on traditional indigent defense systems by allocating greater resources to the defense function, defense advocates increasingly turned to litigation as a means of compelling legislative action and overcoming existing political process failures.

This paper provides a brief historical overview of the growing pressures on state and local indigent defense systems. It then discusses the changing litigative approaches to reform which have evolved in response to the growing indigent defense crisis, focusing on modern injunction-centered class action suits. After considering a series of case studies in Stinson v. Fulton County, Best v. Grant County, Doyle v. Allegheny County Salary Board, and Rivera v. Rowland, this paper discusses the relative advantages of class actions seeking detailed judicial orders as compared with other forms of litigative reform efforts, such as those seeking judicial declarations of unconstitutionality or narrowly tailored injunctive orders. It ultimately concludes that modern class action lawsuits have the unique capacity to generate sustained reform by altering public opinion, changing legislative incentives, fostering cooperation building, and generating court-enforceable settlements.

This paper is also available at the Civil Rights Litigation Clearinghouse (search for case studies).

Keywords: indigent defense, public defender, structural litigation, political process failure, injunctions, Gideon v. Wainwright, right to counsel

JEL Classifications: K14, K40, K41

Working Paper Series