Litigative Approaches to Enforcing the Right to Effective Assistance of Counsel in Criminal Cases


The preceding brief history of defense services demonstrates that delivery of a constitutionally adequate criminal defense is a function of both the abilities of the individual defense counsel and the resources and structure of the defense system as a whole. Those resources and structure can render it impossible for even the most competent attorney to effectively defend her client. However, when analyzing the effectiveness of counsel, courts have historically focused almost entirely on the abilities of the individual attorney, without recognizing the constraining impact of systemic limitations.

Some individual lawyers have raised the issue of the effect of systemic inadequacies in the courts, usually in the context of the inadequacy of attorney fees. This approach recognizes the key role which the judiciary can and must play in resolving issues which have been ignored by both the executive and legislative branches. Unfortunately, this strategy can also narrow the scope of issues to be considered. In addition, many courts are troubled or uncertain about the scope of their constitutional or discretionary powers in this area.

Nevertheless, this article argues that the litigator’s instinct to seek judicial resolution of systemic inadequacies is sound. Such resolution can be achieved through remedial litigation which addresses the structural shortcomings of systemic limitations that hinder the delivery of defense services. This conclusion is supported by historically successful models of remedial litigation in such areas as prison conditions and voting rights, as well as the few cases which have already adopted this approach to effective delivery of defense services on a systemic basis.

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