Systemic Reform: Some Thoughts on Taking the Horse before the Cart


In their articles, “Litigative Approaches to Enforcing the Right to Effective Assistance of Counsel in Criminal Cases,”‘ and “The Right to Counsel and the Indigent Defense System,” Richard Wilson and Suzanne Mounts contend that failings in the delivery of criminal defense services are principally attributable to ill-structured defense systems, excessive caseloads, insufficient resources, and underfunding. The authors argue that the judiciary remains the best hope for reforming defense systems, particularly because the legislative branch has been unwilling to provide adequate financing to enforce the constitutional right to counsel. The authors contend that broad systemic litigation can compel state and local governments to provide adequate financing and resources, thereby guaranteeing effective representation of the poor. Wilson advises those interested in litigating systemic issues to pursue injunctive and declaratory relief in either federal or state courts. Mounts considers the application of systemic defects to a criminal defendant’s sixth amendment claim on appeal and at the trial level. A successful appellate claim would necessitate the reversal of a criminal conviction. The trial-level remedies con-templated involve dismissal of the pending charges, replacement of the attorney, and provision of additional resources.

I concur with the authors’ observation that systemic reform is essential. Nevertheless, the question remains: How are we most likely to assure that indigent defense services achieve the “reasonably competent” standard, which the Court adopted in Strickland v. Washington and United States v. Cronic¬†as the constitutional minimum. I disagree with the means posited by the authors to effectuate systemic change. The authors’ approaches, I believe, are not only inconsistent with the Court’s interpretation of the right to effective assistance of counsel, but more importantly, deflect inquiry away from amore central problem: the failure of the profession to train qualified attorneys willing to undertake the task of representing the poor.

I will briefly review the recent opinions of the Court related to the issues of ineffective assistance to test the validity of the authors’ contentions. In addition, I will consider the posture of state courts, which Wilson contends present a viable “by-pass” to the risks of federal litigation in the post-StricklandCronic era. Finally, I will review the issue of qualification for service of court appointed counsel, recognizing that the Court has replaced the lowly”farce and mockery” standard, as a measure of counsel’s effectiveness, with a uniform standard of “reasonable competence.” In undertaking this inquiry,I will consider whether the profession has engaged in sufficient oversight to assure that attorneys assigned to the poor are willing and capable of providing effective representation.

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