Funding the Unfunded Non-Mandate: An Equal Justice Case for Adequate Funding of Public Defense
University of Pennsylvania Journal of Law and Social Change, Forthcoming Volume 25 (2021-2022)
28 Pages Posted: 3 Jun 2021
Date Written: December 20, 2020
Federal and state courts have failed to fully address inadequate funding for public defenders as a hurdle to the right to effective assistance of counsel—as opposed to the right to mere assistance of counsel. Courts view denials of this right as due process violations and embark on individualistic analyses. However, precedent indicates that equal protection, which is inherently comparative and provides for a more systemic lens, also comes into play with the right to be represented by an attorney when facing the full weight of the criminal justice system. By reframing the issue and moving the discussion from due process to equal protection, advocates seeking relief for public defender offices and their clients can take advantage of—and reframe court understanding of—studies demonstrating that, as currently funded, public defenders cannot adequately represent their clients in line with their ethical obligations.
Keywords: equal protection, due process, right to counsel, effective assistance of counsel, public defenders, Gideon, Powell, Strickland, 6th Amendment, 14th Amendment
JEL Classification: K00, K1, K10, K14, K19
Suggested Citation: Suggested Citation