Funding Gideon's Promise by Viewing Excessive Caseloads as Conflicts of Interest

36 Pages Posted: 15 Aug 2011 Last revised: 11 Mar 2012

Date Written: August 13, 2011


Some states recently have attempted to legislate around a defendant’s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Sadly, that step is nothing new. Step two - the one that has slipped by without sufficient notice or criticism - is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants’ Sixth Amendment rights to effective assistance.

In this article, I urge courts to “constitutionalize” the excessive caseload problem via two steps of their own. First, courts explicitly should recognize that excessive caseloads create unethical conflicts of interest for the public defenders laboring under them. Second, courts should equate excessive caseload conflicts with joint representation conflicts. Once viewed as that type of conflict, excessive caseloads then would be evaluated under Sullivan’s “adverse effect” test instead of under Strickland’s more stringent “actual prejudice” test. Under Sullivan, the most egregious excessive caseload conflicts could be deemed unconstitutional. As a result, courts effectively could require states to do what few legislatures are willing to do on their own - finally provide adequate funding for indigent representation consistent with Gideon’s promise.

Keywords: Conflict of interest, ethics, Sixth Amendment, effective assistance of counsel, Sullivan, Strickland

JEL Classification: K14

Suggested Citation

Anderson, Heidi Reamer, Funding Gideon's Promise by Viewing Excessive Caseloads as Conflicts of Interest (August 13, 2011). Hastings Constitutional Law Quarterly, Vol. 39, p. 421, 2012, Available at SSRN:

Heidi Reamer Anderson (Contact Author)

Florida Coastal School of Law ( email )

8787 Baypine Rd.
Jacksonville, FL 32256
United States

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