Jason Warfield

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Most criminal defendants cannot afford their own attorney and instead rely on attorneys provided by the government.[1]  Ever since Gideon[2] guaranteed representation to defendants facing possible imprisonment, critics have harshly criticized the quality of that representation, focusing in particular on jurisdictions where public defenders have staggering caseloads that make it effectively impossible to routinely go beyond “meet ‘em, greet ‘em, and plead ‘em,”[3] and where appointed and contract counsel have compensation schemes that demand the rapid resolution of cases.[4]  In some jurisdictions, attorneys lack the time—sometimes best measured in minutes per case—to perform even a basic investigation of the facts much less develop a meaningful attorney-client relationship or probe the prosecution’s case for weaknesses.[5]  Public defense attorneys with too many cases often also lack support services like investigators or expert witnesses.[6]  Although the highly deferential Strickland Test provides a remedy for ineffective counsel in extraordinary cases,[7] it has done little to stop assembly-line justice from flourishing in the years since Gideon, a once-revolutionary decision that is widely considered a broken promise.[8]

However, despite billions of dollars spent on public defense, and millions of words criticizing it, its effectiveness is poorly understood.  Currently available research readily points out major problems, but it does not measure the resulting harm or show how differences in process lead to differences in results.  This information would guide legislators interested in improving the effectiveness—or cost-effectiveness—of public defense.  It could also demonstrate whether the Strickland Test adequately maintains a constitutional floor for attorney effectiveness.  All stakeholders would benefit from data that clearly demonstrates what works and what does not. 

Part I of this Note provides a brief overview of the Sixth Amendment right to effective counsel, the Strickland Test for the ineffective assistance of counsel, and the most common ways governments meet their obligation to provide counsel to the indigent.  It concludes with an introduction to randomized controlled trials (RCTs).  Part II provides an overview of existing research methods, argues why they cannot reliably evaluate indigent defense services, and compares them unfavorably to RCTs, the gold standard for evaluating the effectiveness of medical and psychological treatments.  Part III proposes how RCTs in indigent defense can work and how they can provide badly-needed data to all stakeholders.  This Note concludes by proposing a revised Strickland Test that can better protect the Sixth Amendment right to effective counsel. 

 

[1] In felony cases, court-appointed attorneys represented 82% of state defendants in the 75 largest counties in 1996 and 66% of Federal defendants in 1998.  Caroline Wolf Harlow, U.S. Department of Justice, Bureau of Justice Statistics Special Report: Defense Counsel in Criminal Cases 1 (2000). 

[2] See Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963) (recognizing the right to counsel as a fundamental right, extending the right to counsel to indigent criminal defendants in state prosecutions).  State prosecutions make up 95% of criminal prosecutions.  See Harlow, supra note 1, at 4.

[3] See Robert Patrick, Public Defender Rules Are Set to Change: Lawyers Say it’s Unethical to Represent Some with so Little Time to Prepare, St. Louis Post-Dispatch, July 3, 2005, at E1 (describing the Missouri State Defender’s efforts to move away from Missouri State Defender supported the move away from the current system described as “meet ’em and greet ’em and plead ’em.”); Dan Christensen, No More Instant Plea Deals, Says Public Defender, Daily Bus. Rev., June 6, 2005, https://www.law.com/almID/900005543846/ (“They meet with an attorney for sixty seconds, then they plead guilty and surrender their rights.”); See also Keeping Defender Workloads Manageable, U.S. Department of Justice, Bureau of Justice Assistance 4 (2001) (“Many defenders who face excessive caseloads make decisions analogous to those made by physicians in a M.A.S.H. unit. They perform triage.”);

[4] See Lefstein, supra note 2, at 14 (“When adequate oversight of assigned counsel programs is lacking, the lawyers, in an effort to maximize their incomes, sometimes accept too many cases, because they are poorly  compensated on a per case basis for their services.”).

[5] See Lefstein, supra note 2, at 18 (describing how Rhode Island public defenders “handling, on average, 1517 misdemeanor cases and 239 felonies” per year “would have on average, one hour and five minutes to devote to each of his or her cases—to meet with clients, interview witnesses, prepare bail and pretrial motions, appear in court, and so on. Often, therefore, there is only time to ‘meet and plead’ clients guilty.”).

[6] See Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57 Hastings L. J. 1031, 1046‑47 n. 62 (2006) (describing differential access to investigators and experts as one of the “invisible but great financial advantages given to prosecution offices”).

[7] Perhaps more extraordinary are some of the cases denied relief.  See, e.g., People v. Garrison, 765 P.2d 419, 420 (Cal. 1989) (finding that although the attorney “was arrested for driving to the courthouse with a .27 percent blood-alcohol content” and “drank in the morning, during court recesses, and throughout the evening,” this information did “not address whether Beardsley’s addiction adversely affected his courtroom performance to such an extent that defendant was denied effective assistance of counsel.”).  As this case illustrates, outrageous attorney conduct without proof of harm is insufficient to prove ineffective assistance of counsel.

[8] See, e.g., Lefstein, supra note 2 at 2 (describing our nation’s public defense systems as a “great embarrassment.”); ABA Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken

Promise: America’s Continuing Quest for Equal Justice 38 (2004) (describing funding for indigent defense as “shamefully inadequate”); Thomas Giovanni & Roopal Patel, Brennan Center for Justice, Gideon at 50: Three Reforms to Revive the Right to Counsel 3 (2013) (describing Gideon as “an unfunded mandate” due to chronic underfunding and overwhelming caseloads); National Right to Counsel Committee, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel xi (2009), https://archive.constitutionproject.org/‌wp-content/‌uploads‌/2012/‌10/‌139.pdf (“It is no longer news that Gideon’s constitutional promise has not been fulfilled in many states and counties around the country.”).