Comment: The Gideon Split: Preconviction Indigent Defense Reform Litigation in Hurrell-Harring and Duncan
William H.W. McKenna
University of California Davis, School of Law
November 1, 2011
UC Davis Law Review, Vol. 45, p. 193, 2011
Forty-nine years after the U.S. Supreme Court’s decision in Gideon v. Wainwright, many states continue to fail to effect its guarantee. Recently, some indigent defendants have challenged states’ systemic neglect of indigent defense through pre-conviction class action suits seeking prospective relief, like Hurrell-Harring v. State, in New York, and Duncan v. State, in Michigan. This Comment argues that pre-conviction civil claims alleging systemic Sixth Amendment deprivations and seeking prospective relief are not properly treated as ineffective assistance of counsel claims. Rather, such claims present the justiciable question of whether the state has enabled Gideon’s guarantee at all. In essence, when states systemically neglect indigent defense, thereby preventing public defenders from fulfilling their ethical obligations in individual cases, those states categorically deprive indigent defendants of their Sixth Amendment right to counsel, and courts must intervene.
Number of Pages in PDF File: 28
Keywords: Pre-Conviction, Indigent Defense, Public Defense, Legal Aid, Reform Litigation, Hurrell-Harring, Duncan, Gideon, Strickland, Cronic, Class Action, Prospective ReliefAccepted Paper Series
Date posted: May 14, 2011 ; Last revised: February 3, 2012
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