What Policy-Makers Need to Know to Improve Indigent Defense Systems


In 1937, U.S. Supreme Court Justice Cardozo stated that certain fundamental constitutional rights are the bases of every other right. These rights are “implicit in the concept of ordered liberty.”‘ In criminal trials, the right to counsel is regarded as one such fundamental right. Since the 1963 U.S. Supreme Court Gideon v. Wainwright decision, an indigent defendant who cannot afford counsel is to be provided one by the state. This and other subsequent Court decisions led every state in the nation to adopt indigent defense systems. The Supreme Court left it to the states to decide how public defense would be provided to criminal offenders unable to pay for private counsel. Today, many questions exist as to the effectiveness of some of these state public defense systems.

One serious obstacle to the improvement of indigent defense systems is the lack of data and systemic policy analysis necessary for state policymakers to come to terms with the relevant issues that need to be addressed. One need only examine the limited literature in this area to understand the dearth of empirical research exploring the complex issues relevant to the improvement of indigent defense system operations. This paper makes the case for policymakers and researchers to develop a strategy for formulating relevant inquiries and then gathering current data to assess the effectiveness of a state indigent defense system. A starting point for this undertaking is to identify the major justifications for why a state would want to build a strong indigent defense system and to formulate the key questions that policymakers need to explore before deciding how best to improve and evaluate a public defense system. Until a comprehensive body of knowledge is established, reforms in this area will continue to be difficult.

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