Isonomy, Austerity, and the Right to Choose Counsel

51 Indiana Law Review 167 (2018)

43 Pages Posted: 8 Mar 2018

See all articles by Janet Moore

Janet Moore

University of Cincinnati College of Law

Date Written: February 28, 2018

Abstract

People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated. This Article extends the analysis by explaining how a different theoretical approach—one grounded in libertarian commitments to private enterprise and austerity in public funding—shaped the nation’s first pilot study on counsel choice in a public defense setting. Those commitments sharply limited the measure of counsel choice offered and left the study with insufficient data to support generalizable conclusions. Thus, the study underscores questions about whether an equal right of counsel choice can be meaningful under conditions of austerity and might actually aggravate instead of ameliorate system deficits. The Article concludes that while meaningful counsel choice for poor people may be elusive, the constitutional interests at stake nevertheless warrant elimination of overt class-based discrimination from the vindication of a fundamental right.

Keywords: right to counsel, democratic theory

Suggested Citation

Moore, Janet, Isonomy, Austerity, and the Right to Choose Counsel (February 28, 2018). 51 Indiana Law Review 167 (2018). Available at SSRN: https://ssrn.com/abstract=3131972

Janet Moore (Contact Author)

University of Cincinnati College of Law ( email )

Post Office Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0126 (Phone)
513-556-1236 (Fax)

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