Comment: The Gideon Split: Preconviction Indigent Defense Reform Litigation in Hurrell-Harring and Duncan

28 Pages Posted: 14 May 2011 Last revised: 3 Feb 2012

William H.W. McKenna

University of California Davis, School of Law

Date Written: November 1, 2011

Abstract

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.

Keywords: Pre-Conviction, Indigent Defense, Public Defense, Legal Aid, Reform Litigation, Hurrell-Harring, Duncan, Gideon, Strickland, Cronic, Class Action, Prospective Relief

Suggested Citation

McKenna, William H.W., Comment: The Gideon Split: Preconviction Indigent Defense Reform Litigation in Hurrell-Harring and Duncan (November 1, 2011). UC Davis Law Review, Vol. 45, p. 193, 2011. Available at SSRN: https://ssrn.com/abstract=1839623

William H.W. McKenna (Contact Author)

University of California Davis, School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

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