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Raising the Burden of Proof: A Default Rule for Remedying the Under-Funding of Indigent Defense

55 Pages Posted: 18 Sep 2006  

Adam M. Gershowitz

William & Mary Law School

Date Written: September 15, 2006


Indigent defense in America is woefully under-funded. While prior reform efforts have been valiant, they unfortunately have been unsuccessful. For the most part, courts have been unwilling to inject themselves into difficult funding decisions. And when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This article proposes an alternative framework designed to assuage courts' concerns about micro-managing budget decisions, while at the same time imposing continuous pressure on legislatures to ensure proper funding.

This article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the burden of proof to convict indigent defendants to "beyond all doubt" for the subsequent year. The legislature will then have the opportunity to opt out of this higher burden of proof by providing enough funding to bring defense lawyers' caseloads within well-recognized standards or by providing funding parity with prosecutors' offices. Such an approach will create an incentive for legislatures to adequately fund indigent defense without miring courts in detailed supervision of legislative budget decisions. At the same time, because courts can check once per year to determine whether there is funding parity with prosecutors' offices or compliance with caseload guidelines, there will be constant pressure on legislatures to maintain adequate funding in order to avoid the higher burden of proof. This approach should prevent improvements in indigent defense funding from dissipating over time.

Keywords: indigent, indigence, appointed counsel, default rule, Gideon

Suggested Citation

Gershowitz, Adam M., Raising the Burden of Proof: A Default Rule for Remedying the Under-Funding of Indigent Defense (September 15, 2006). Available at SSRN: or

Adam M. Gershowitz (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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